Attempts to Commit an Offence Flashcards
Attempting to commit an Offence
Section 72 Crimes Act 1961
(1) Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his objective, 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.
Three elements of an attempt offence
The following conditions must proved for an ‘attempt’ conviction to succeed:
- Intent (mens rea) - to commit the offence
- Act (acts reus) - that they did, or omitted to do, something to achieve that end
- Proximity - that their act or omission was sufficiently close.
Identity of the suspect(s) is also essential.
There is also a 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.
R v Ring
Inferring Intent from the Act:
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.
R v Ring
Physically or factually impossible.
A question of Fact
Whether that intent exists or not is a question of fact; a question that the jury decides.
Section 72(3)
Act(s) must be immediately or sufficiently proximate to the full offence:
Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation - the “all but” rule.
Examples of Attempt
- Lying in wait, searching for or following the contemplated victim.
- Enticing the victim to go to the scene of the contemplated crime.
- Scouting the scene of the contemplated crime.
- Unlawfully entering a structure, vehicle or enclosed yard 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.
R v Harpur
Several acts together may constitute an attempt:
The defendant’s conduct may be viewed cumulatively up to the point when the conduct in question stops and may be considered in it’s entirety. Considering how much remains to be done is always relevant, though not determinative.
R v Harpur
In doing so, you must take into account the circumstances of each case, including: fact, degree, common sense and seriousness of the offence.
Proximity
Do the facts show mere preparation, or are the defendant’s acts or omissions immediately or sufficiently proximate to the intended offence?
Test for proximity:
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
- Has the offender actually commenced the execution; that is to say, has he taken a step in the actual crime itself?
Question of Law
Section 72(2) 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.
Impossibility
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.
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.
Higgins v Police
Physically or factually impossible:
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
Physically or factually impossible:
A man bought hedge clippings believing they were cannabis.
R v Donnelly
Legally Impossible:
Where stolen property has been returned to the owner or the legal title 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.
When an attempt is complete
An attempt is complete after completing an act that is immediately or sufficiently proximate to the intended offence. Even when the defendant changes their mind or makes a voluntary withdraw after committing the act.
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; e.g. interrupted by Police.
- Failed to complete the full offence due to ineptitude, inefficiency or insufficient means, e.g. not enough explosives to blow apart a safe.
- Were prevented from committing the offence because an intervening event made it physically impossible, e.g., removal of property before intended theft.
Function of Judge and Jury
The judge must decide whether the defendant has left the preparation stage and was already trying to effect the completion of the full offence. If so the case goes to the Jury.
The jury decide whether the facts presented were beyond reasonable doubt, and if so, must decide next whether the defendant’s actions are close enough to the full offence.
Prosecution must also convince the Jury beyond reasonable doubt that the defendant Intended to commit the full offence.
