Attempts To Commit An Offence Flashcards
Attempting to commit an offence
Act, section and elements
Attempting to commit an offence
S72 (1) CA 61
Definition of attempts
Everyone who,
Having an intent to commit an offence,
Does or omits an act for the purpose of accomplishing his object,
Is guilty of an attempt to commit the offence intended,
Whether in the circumstances it was possible to commit the offence or not.
3 elements of an attempt
Men’s rea
Actus reas
Proximity
R v Ring
In this case the offender’s 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
Define Sufficiently Proximate
S73(3) outlines that the accused must have done or omitted to do some act(s) that is/are sufficiently Proximate to the full offence.
Effectively the accused must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but rule”
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative
The test for proximity
Has the defendant done anything more than getting himself into a position from which he could embark on an actual attempt
Has the offender actually commenced execution ;that is to say, has he taken a step in the actual crime itself.
Who determines if it is sufficiently Proximate?
The judge
Proximity is a question of law, it is a question that is decided by the judge based on the assumption that the facts of the case are proved
Impossibility - “whether in the circumstances it was possible to commit the offence or not”
Explain
Refers to a physical impossibility and not a legal impossibility
A person can be convicted of an offence that was physically impossible I. E trying to steal from an empty pocket
But
Cannot be convicted of an offence that was legally impossible I. E being in possession of stolen goods after they have been recovered /returned to the owner
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
Polive v Jay
A man brought hedge clipping believing they were cannabis - can be convicted of an attempt
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.
When is an attempt complete
An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently Proximate to the intended offence.
Function of Judge and Jury
Judge - decides if defendant had left preparation stage and was trying to effect completion of full offence.
Jury- decide whether facts presented by the Crown have been proved beyond reasonable doubt and if so, must decide whether the defendant’s acts are close enough to the full offence.
