Short Answer Attempts Flashcards

1
Q

What are the three elements that must be present to get a conviction

A

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 omission was sufficiently proximate

Additionally there is the requirement that it must be
legally possible to commit the offence, in the circumstances

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2
Q

Discussion around intent

A

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.

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.

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3
Q

Who decides if intent is present?

A

Whether that intent exists or not is a question of fact; a question that the jury
decides.

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4
Q

Acts must be sufficiently proximate to the full offence - examples?

A

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.

· 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 enterring 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.

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5
Q

The test for proximity

A

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.

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6
Q

Is proximity a question of law?

A

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.

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7
Q

Elements that help determine proximity

A

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.

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8
Q

When is an attempt complete?

A

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.

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9
Q

Function of the Judge and Jury

A

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.

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10
Q

You are unable to charge someone with an attempt to commit an offence where…

A

· 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.

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11
Q

Filing of charges

A

Where a defendant is charged with the full offence, but is found guilty of only the attempt, they can be convicted of the attempt

Where a defendant is charged with an attempt, yet the full offence is proved, the defendant can only be convicted of the attempt

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.

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12
Q

In each case of attempt you must prove

A
  • the identity of the suspect(s), and
  • they intended to commit an offence, and
  • they did, or omitted to do, something to achieve their object
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