Attempts To Commit An Offence - s72(1)

Question 1

Attempts – s72(1) Crimes Act 1961

Answer 1

• 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.

Question 2

What 3 conditions (elements) must apply for a conviction to be successful?

Answer 2

• Intent (Mens rea) - to commit an offence
• Act (Actus rea) - that they did or omitted to do something to achieve it
• Proximity - that their act or omission was sufficiently close.

Question 3

Intent must be established

Answer 3

It must be shown that the accused’s intention was to commit the substantive offence.

Question 4

What does the Act say about how they must be significantly proximate to the full offence – s72(3)?

Answer 4

They must have started to commit the full offence and have gone beyond the phase of mere preparation – this is the “all but” rule (s72(3))

Question 5

The test for proximity -
Simester & Brookbanks
suggest the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

Answer 5

• Has the defendant 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, has he taken a step in the actual crime?

If the answer is yes, there’s been an attempt. If not, it’s preparation and not an offence.

Question 6

HARPUR
- Cumulative conduct

Answer 6

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, but not determinative.

Question 7

When is an act physically or factually impossible?

Answer 7

If the act amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control.

Question 8

RING
- Attempted theft

Answer 8

The offender’s intent was to steal property by putting his hand into the victim’s pocket. The pocket was empty. Despite this, he was convicted of attempted theft because the intent to steal was in his mind and demonstrated by his actions.

Question 9

JAY
- Physically impossible, legally possible

Answer 9

A man bought hedge clippings believing they were cannabis.

Question 10

HIGGINS

Answer 10

Cultivating a plant thinking its Cannabis (Attempted cultivation of Cannabis)

Question 11

DONNELLY
- Example of legally impossible act

Answer 11

Where stolen property has been returned to the owner or legal title has been acquired by any person, it’s not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

Question 12

When an attempt is complete - Act completed sufficiently proximate to intended offence

Answer 12

An attempt is complete even if the suspect changes his mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence.

Question 13

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

Answer 13

• Were prevented by an outside agent from doing something necessary to complete it
  e.g., interruption from police.
• Failed to complete the full offence due to ineptitude or insufficient means
  e.g., Insufficient explosives to blow apart a safe.
• Were prevented from committing it because an intervening event made it physically impossible
  e.g., Removal of property before intended theft.

Question 14

Function of the judge and jury

Answer 14

• The Judge decides if the defendant had left the preparation stage and was already trying to complete the full offence.
• The Jury decides if the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must decide if the defendant’s acts are close enough to the full offence.

Question 15

Unable to charge with attempt - What are the 3 groups of offences that do not allow for a prosecution in respect of an attempt?

Answer 15

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

• Criminality depends on recklessness or negligence (Manslaughter)
• An attempt to commit an offence is included within the definition of the offence
  (Assault)
• The act must be completed for the offence to exist.
  (Demands with menace)