OF05 Parties and Attempts Flashcards
What are the differences between Category 2, 3 and 4 offences?
Category 2 – An offence punishable by a term of imprisonment of less than two years.
Category 3 – An offence that is punishable by imprisonment for life or by imprisonment of 2 years of more
Category 4 – An offence that is punishable by imprisonment for life or by imprisionment for 14 years or more.
What is Section 28, Summary Offences Act 1981 (and the elements)?
Preparing to commit an imprisonable offence
- Found
- In any public place
- Behaving in a manner from which it can be reasonably inferred that the person is
- Preparing to commit an imprisonable offence
Under what section and Act can you arrest someone for preparing to commit an imprisonable offence?
Section 39(1), Summary Offences Act 1981
“Good cause to suspect”
Can previous convictions be used as evidence in relation to the offence of ‘Preparing to commit an imprisonable offence’?
Yes, this is a statutory exception to the rule that prosecution cannot present evidence of the defendant’s bad character or previous criminal convictions.
Can the offence of ‘Preparing to commit an imprisonable offence’ be committed in someone’s private home?
No, this offence is can only be committed in a public place.
What must you prove for an ‘attempted’ offence?
- The identity of the suspect and that they
- Intended to commit an offence
- Did, or ommitted to do, something to achieve that end
What are some substantive offences that cannot be ‘attempted’ and why?
You cannot ‘attempt’ these offences as they are full and complete offences in and of themselves.
- Attempted murder
- Attempted arson
- Attempting to pervert the course of justice
- Attempted sexual violation
- Attempted dishonest/dishonest taking of documents
What are three requirements for an attempt?
- Intent (mens rea)
- Act (actus reus)
- Proximate
What consitutes an Act for Actus Reus for an attempted offence?
Act means an actual act that is one part of many acts that would form the offence (e.g. placing a crowbar into a window to try and gain entry).
Effectively, this means starting to commit the offence (even if it is not completed).
If someone thinks about breaking into a home to commit burglary, what is the charge?
Nothing - thinking about committing an offence is not of itself an offence.
If someone after thinking about robbing a store leaves home with a crowbar and gloves, what is the charge?
Possession of burglary instruments
If someone parks in front of an empty home they intend to burgle, what is the charge?
Preparing to commit an imprisonable offence
If someone places a crowbar into the window of a home but is scared off, what is the charge?
Attempted burglary
What are the closenesses of acts called and when are they proximate to the offence?
(1) Ultimate act - always proximate - full offence
(2) Penultimate act - usually proximate - attempted offence
(3) Antepenultimate act - sometimes proximate - sometimes attempted offence or otherwise preparing to commit an imprisonable offence
What are the proximate stages of acts when poisoning someone with cyanide in their drink?
Antepenultimate act - taking cyanide pills with you to a dinner party
Penultimate act - removing cyanide pill from the bottle
Ultimate act - placing the cyanide in their drink
What does factually impossible, legally possible mean in relation to attempted offences?
An attempt at an offence that is either physically or factually impossible is not a defence.
For example, reaching into someone’s purse to steal their wallet which isn’t their would still be ‘Attempted theft’ even though it was physically impossible for him to steal the wallet.
What are the penalties for attempted offences?
Life imprisonment - 10 years imprisonment
Other penalties - half maximum penalty
What do sections 72(1) and 311(1) tell the court when added to charging documents?
s72(1) → tells the court you are charging for an attempted offence
s311(1) → tells the court you are referring to the attempt penalty provisions
What are the two offences of being party to an offence?
s66(1), Crimes Act 1961 - Two or more people who actually commit an offence by assisting in some way. Their assistance means they become parties to the offence. ACTUALLY INTENDED.
s66(2), Crimes Act 1961 - Two (or more) people forming a common intention to commit an offence. Each will be guilty of an offence committed by the other in certain circumstances. NOT INTENDED, ACCIDENTAL.
What penalty does someone who is a party to an offence receive?
The same penalty as if they had committed the actual offence.
Definition of being party to an offence under s66(1), Crimes Act 1961
a) Actually commits the offence
b) Does or omits an act to aid any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels or procures a person to commit the offence
Is passive presence sufficient to support a charge of being party to an offence?
Generally no, however there are certain exceptions.
Example 1: An owner of a car sitting in the vehicle without protesting the driver who is driving dangerously has been held to be implicitly encouraging the driver and therfore being a party to the offence of dangerous driving (Ashton v Police 1964).
Example 2: A parent has a legal duty to prevent the ill-treatment of their child while a stranger does not have this same legal duty.
How many offences does section 66(1) apply to?
Applies to one offence only - it must be used for and charged separately for each offence committed.
Definition of being party to an offence under s66(2), Crimes Act 1961
Where two or more persons form a common intention to prosecute any unlawful purpose and to assist each other therein:
- each of them is a party to every offence committed by any one of them in the prosecution of the common purpose,
- if the commission of the offence was known to be a probable consequence of the prosecution of the common purpose.
