Attempts to commit an Offence - Module Flashcards
Attempts to commit an Offence - Module.
Introduction
The definition of attempt is found in s72 of the Crimes Act 1961. This
section does not create attempt offences. Such offences are only created
when specific Acts provide punishment for attempts to commit specific
offences. For example, s173 of the Crimes Act 1961 provides punishment
for attempted murder.
Learning objectives
When you have completed this chapter, you should be able to demonstrate
an understanding the key concepts of Attempts by way of explanation of:
* the difference between an attempt and a completed offence
* what constitutes an attempt to commit an offence
* the mind-set required
* actus reus and proximity
* the functions of the judge and jury
Attempting to commit an offence
Crimes Act 1961
72 Definition of attempts
(1) Every one 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.
(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.
ELEMENTS
Introduction:
Section 72 does not of itself create an offence of ‘attempt’. It is simply a
definition of attempt that applies to all offences. The punishment for attempts can be found under several other provisions in the Crimes Act 1961 and will be discussed later in this chapter.
Three elements of an attempt offence
Case law has established the following three conditions that must apply for
an ‘attempt’ conviction to succeed:
* intent (mens rea) – to commit an offence
* act (actus reus) – that they did, or omitted to do, something to achieve that
end
* proximity – that their act or ommission was sufficiently close
The suspect behaviour must satisfy all three conditions, at a minimum, to
constitute an attempt. Additionally there is the requirement that it must be
legally possible to commit the offence, in the circumstances. A person can
be convicted of an offence that was physically impossible to commit.
Intent must be established
Mens rea is the Latin term for a ‘guilty mind’ and refers to the intention or
knowledge of wrongdoing that constitutes part of a crime.
When proving an attempt to commit an offence it must be shown that the
accused’s intention was to commit the substantive offence.
In R v Murphy7 , an attempted murder matter, the Court held it was necessary
for the Crown to establish an actual intent to kill, rather than any of the other
implied intents by which murder can occur.
The requirement for “intent” in section 72(1) suggests that an intention to
commit the offence only will be sufficient and that there cannot be an
attempt where an offence is defined solely in terms of recklessness or
negligence. Two examples highlighting the difference between an “intent to commit an offence” and “recklessness” are shown below.
Example: Assault with intent to commit sexual violation
The Court held in L v R8 that in relation to sexual violation, which under
s128 Crimes Act 1961 requires only that the accused lack a reasonable belief
in consent, the mens rea of an “attempted” sexual violation is precisely the
same as that required for the completed offence. All that needs to be proved
is that at the time of the accused’s acts, the accused did not hold a reasonable
belief that the complainant was consenting to the intended activity.
A female goes to her bedroom to sleep only to wake up with a naked male
flatmate on top of her, holding her tightly and saying he wants to have sex.
The female protests and eventually forces the male off of her before any
sexual activity. The male is liable to be convicted of assault with intent to
commit sexual violation by rape as his intent was to have sex with the
female, the female clearly did not consent to the activity and there were no
reasonable grounds for the male to believe that she did in fact consent to the
intended sexual activity.
Example: Manslaughter
It is generally accepted that there is no offence of attempted manslaughter.
This is because attempt under section 72 requires an intent to bring about a specific object. With manslaughter death is unintended. It is therefore a
contradiction in terms to hold that someone attempted to bring about death
as an unintended consequence. If there was an intention to cause death, the
appropriate charge is attempted murder.
Inferring intent from the act
The intent of the offender(s) may be inferred from the act itself (what they
did) and/or proved by admissions or confessions (what they said).
Example: Attempted burglary
To be convicted of attempted burglary the offender(s) must have had the
intent to commit the actual burglary
Intent can be inferred, for example, from the burglars admitting they went to
the property intent on committing the burglary and/or them being found in
possession of tools or disguises at the back door of a premises before
actually entering.
The case of R v Ring9 , is a significant one to consider as it covers several
important ‘attempts’ issues, including intent.
The accused was seen to hustle some women on a railway platform, and he
put his hand in the pocket of one of them. The woman could not be located
to give evidence, and accordingly there was no evidence that there was
anything in her pocket to be stolen.
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 discovered inside the pocket was present in
his mind and demonstrated by his actions. The remaining elements were also
satisfied.
A question of fact
Whether that intent exists or not is a question of fact; a question that the jury
decides.
Act or omission Act or omission is not defined in the Crimes Act 1961.
Act: To take action or do something, to bring about a particular result:
Oxford Dictionaries, Oxford University Press.
Omission: The action of excluding or leaving out someone or something, a
failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford
University Press.
Example: (Act)
A doctor deliberately administers [the act] a substance to a patient that
causes the patient’s death.
Example: (Omission)
A doctor deliberately avoids administering [the omission] a substance to a
patient who is critically ill, when he knows that the substance would save the
patient’s life.
The purpose of the act or omission must be so that the offence can be
facilitated.
Actus reus
The wording of the statute, “Does or omits an act for the purpose of
accomplishing his object”, refers to the action or conduct (physical) which is
a constituent element of an offence, the actus reus.
Actus reus is a Latin term meaning ‘guilty act’.
Act(s) must be sufficiently proximate to the full offence
Section 72(3) Crimes Act 1961 outlines that the accused must have done or
omitted to do some act(s) that is/are sufficiently proximate (close) 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.
In the case of Ring10 the actus reus was the putting of the hand into the
victim’s pocket, this being a physical act on the part of the offender towards
completing what would have amounted to a theft had property been present.
The Court of Appeal in R v Harpur11 observed that section 72 of the Crimes
Act applies to “hundreds of offences and an infinite variety of factual
situations, the metes and bounds of which it was impossible for Parliament
to predict”.
For this reason there are no criteria set down in NZ legislation or case law to
assist in determining whether a defendant’s actions did or did not amount to
an attempt; each scenario must be analysed on a case by case basis.
However, the Court did refer to the American Model Penal Code as
providing examples of acts that may constitute an attempt to commit an
offence, such as:
- lying in wait, searching for or following the contemplated victim
- enticing the victim to go to the scene of the contemplated crime
- reconnoitring 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 the crime - soliciting an innocent agent to engage in conduct constituting an element
of the crime.
Several acts together may constitute an attempt
Independent acts, when viewed in isolation, can be construed as preparatory.
When the same acts are viewed collectively, they can take on a different
context and therefore amount to a criminal attempt.
In R v Harpur12 , the defendant was involved in a series of text messages with
a woman in which he described, in explicit detail, sexual acts that he wanted
to perform on the woman’s 4-year-old niece. He arranged for the girl to be
brought to him for that purpose, however when he turned up at the agreed
time and place he found that the girl did not in fact exist, and the
arrangements were part of a ‘sting’ operation by Police. Harpur was charged with attempted sexual violation of the fictitious girl, as well as numerous
sexual offences relating to other children.
In concluding that Harpur’s conduct was sufficiently proximate to the full
offence, the Court of Appeal held that his actions need not be considered in
isolation; sufficient evidence of his intent was available from the events
leading up to that point.
R v Harpur [2010] NZCA 319; (2010) 24 CRNZ 909
“[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.”
Proximity
The determination of proximity is an inconclusive one and will come down
to the circumstances as they exist for each individual offence that is being
investigated.
Ask yourself: ‘Do the facts show mere preparation, or are the defendant’s
acts or omissions immediately or sufficiently proximate to the intended
offence?’
The test for proximity
Simester and Brookbanks13 suggests the following questions should be asked
in determining the point at which an act of mere preparation may become an
attempt:
* Has the offender done anything more than getting himself into a 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?
If the answer to either question is “yes” then we can say there has been an
attempt as a matter of law. If not, the conduct can be classed as preparation
and is not an offence.
Proximity is a question of law
Section 72(2) Crimes Act 1961 highlights that 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.
Elements that help determine proximity
There is no clear definition of when an act is proximately or immediately
connected to the offence or is merely preparation. When determining
proximity you must take into consideration fact, degree, common sense and
the seriousness of the offence in each case and these should be looked at in
their totality and each on a case-by-case basis.
Impossibility
The wording in the statute “whether in the circumstances it was possible to
commit the offence or not” refer to a physical or factual impossibility and
not to a legal impossibility.
This means 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.
When an act is impossible or factually impossible
An act is physically or factually 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.
The three cases below are examples of physical impossibility as it relates to
attempts.
R v Ring (1892) 17 COX CC 491
Ibid page 22.
Higgins v Police (1984) 1 CRNZ 187
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 [1974] 2 NZLR 204
A man bought hedge clippings believing they were cannabis
When an act is legally impossible
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.
The suspect may believe that the completed act is illegal, but be mistaken in
their belief that the completed act is illegal. That is, there must be an attempt
to commit an actual offence, not an attempt to do something that, contrary to
the person’s belief at the time, does not amount in law to an offence. For
example, it is not an offence to attempt to sell the hallucinatory plant,
Datura, in the mistaken belief that possession of it is illegal.
Donnelly: Example of legally impossible act
In R v Donnelly14 , a suitcase containing stolen goods from a burglary was
located by police at the luggage office of a railway station. Police recovered
the property and returned it to the owner. Donnelly subsequently visited and
presented a luggage ticket at the office and asked for the suitcase. The
suitcase and stolen property could not be provided to him because it had
already been returned to the rightful owner. Donnelly was initially charged
with receiving stolen property, but convicted of an attempt to do so.
Following appeal it was held that, at the time Donnelly visited the railway
station and presented the luggage ticket for the suitcase, police (acting as the
owner’s agent) had retrieved the property and thereafter it ceased to be
stolen property in accordance with s246(4) of the Crimes Act 1961.
R v Donnelly [1970] NZLR 980
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.
Therefore, the court decided that despite Donnelly’s mens rea and actus reus,
it was legally impossible for him to receive stolen property as those goods
were no longer deemed to be stolen. His conviction was set aside.
When an attempt is complete:
Act completed sufficiently proximate to intended offence
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. Once the acts are sufficiently proximate, the defendant has no defence that
they:
* were prevented by some outside agent from doing something that was
necessary to complete the offence; eg interruption from police
* failed to complete the full offence due to ineptitude, inefficiency or
insufficient means, eg insufficient explosive to blow apart a safe
* were prevented from committing the offence because an intervening event
made it physically impossible, eg removal of property before intended
theft.
Attempt to commit an attempt
There is no such thing as an attempt to commit an attempt, though as a
general principle, an attempt to commit an offence is in itself an offence.
Acts of preparation can sometimes be made to fit substantive offences; eg
the offence of preparing to commit a crime (s28 Summary Offences Act
1981).
Function of the judge and jury
The judge must decide whether the defendant had left the preparation stage
and was already trying to effect completion of the full offence.
The defendant need not have taken all steps necessary towards completing
the full offence. If the judge decides that the defendant’s actions were more
than mere preparation, the case goes to the jury.
The jury must then decide whether the facts presented by the Crown have
been proved beyond reasonable doubt and, if so, must next decide whether
the defendant’s acts are close enough to the full offence.
If the jury finds that the actus reus has been established, it must also find the
same in respect of the mens rea – that is, the prosecution’s evidence must
also convince the jury beyond reasonable doubt that the defendant intended
to commit the full offence.
Prosecution
Unable to charge with attempt
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 has to have been completed in order for the
offence to exist at all. For example, demanding with menaces: it is the
demand accompanied by the menace that constitutes the offence.
Filing of charges
Where a defendant is charged with the full offence, but is found guilty of
only the attempt, they can be convicted of the attempt (s149 Criminal
Procedure Act 2011).
Where a defendant is charged with an attempt, yet the full offence is proved,
the defendant can only be convicted of the attempt (s150 Criminal Procedure
Act 2011).
When framing the charge, add the words “attempted to” before the main
text. After the reference to the Act and section that creates the full offence,
add the Act and section that creates the offence of attempt.
Example:
Attempted to enter a building, namely ( ), without authority and with intent
to commit an imprisonable offence in that building.
(s231(1) & s72 Crimes Act 1961)
Penalties
Several provisions provide for express penalties for attempts to commit
specific offences, eg s129(1) of the Crimes Act 1961, attempted sexual
violation.
Where no punishment is expressly provided, the penalty section to be
applied is s311(1):
Crimes Act 1961
311 Attempt to commit or procure commission of offence
(1) Every one who attempts to commit any offence in respect of which no punishment
for the attempt is expressly prescribed by this Act or by some other enactment is
liable to imprisonment for a term not exceeding 10 years if the maximum punishment
for that offence is imprisonment for life, and in any other case is liable to not more
than half the maximum punishment to which he would have been liable if he had
committed that offence. In some cases an act that is done to further the commission of an offence is
made punishable without the need to address the issue of whether that act
actually amounts to an attempt. For example, assault with intent to commit
sexual violation (s129(2) Crimes Act 1961) makes the act of assault (in
pursuance of rape / unlawful sexual connection) punishable without any
reference to the attempts section.
