Attmept Module

Question 1

Attempting to commit an offence(Elements)

Answer 1

Crimes Act 1961 Section 72 (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.

Question 2

Three elements of attempt

Answer 2

• 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

Question 3

Intent (Case Law)

Answer 3

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 satisfied. whatever property might have been discovered inside the pocket was present in
his mind and demonstrated by his actions.

Question 4

Proximity Test

Answer 4

• Has the offender done anything more than getting himself into a position to make an actual attempt? or
• Has the offender actually commenced execution; taking steps in the actual crime itself?

Question 5

Several acts constitute an attempt (Case Law)

Answer 5

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.

Question 6

Proximity is a question of law

Answer 6

Section 72(2) highlights 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.

Question 7

Acts physically impossible to commit (Case Law)

Answer 7

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.

Question 8

Acts legally impossible (Case Law)

Answer 8

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.

Question 9

Role of the Judge and Jury

Answer 9

• Judge must decide if actions of the suspect is more than mere preparation. If so, the matter goes to the jury
• Jury will decide if the actions are close enough to the full offence. It must decide the offender also had the necessary intent to commit the offence

Question 10

You are unable to charge with attempt when:

Answer 10

• 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.