Flashcards in Attempts Deck (27)
Attempting to commit an offence Act and Section
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.
(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 he intent to commit that offence.
Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.
Case law has established three conditions that must apply for an attempt conviction to succeed. What are they?
-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 close.
There is also the requirement that it must be legally possible to commit the offence.
Case law R v Ring
In his 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 his 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.
Discuss the term sufficiently proximate.
the accused must have done or omitted to so some act(s) that is/are sufficiently proximity (close) to the full offence. 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.
Provide some examples of acts that may constitute an attempt.
-lying in wait, searching for or following the contemplated victim
-enticing the victim to go tot he scene of the contemplated crime
-reconnoitring the scene of the contemplated crime
-unlawfully entering 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.
Case law - R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct stops...the defendant's conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative.
What questions should be asked in the 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 execution; that is to say, has he taken a step in the actual crime itself.
What elements can help determine proximity?
-degree of proximity
-the seriousness of the offence
When is an act physically or factually impossible?
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.
This means a person can be convicted of an offence that was physically or factually impossible to commit but cannot be convicted of an offence that was legally impossible to commit.
Case law - 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.
Case law - Police v Jay
A man bought hedge clippings believing they were cannabis.
When is an act legally impossible?
When the completed act would not be an offence.
Case law - 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.
When is an attempt complete?
An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act 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. interrupted by Police)
-failed to complete the full offence due to ineptitude, inefficiency or insufficient means (eg. not enough explosive)
-were prevented from committing the offence because an intervening event made it physically impossible
What are the functions of the Judge and Jury in an attempts case?
The Judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence. If the Judge decides that the defendants actions were more that mere preparation, the case goes to Jury.
Proximity is a question of law and therefore decided by Judge.
The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt
Intent is a question of fact and therefore decided by Jury.
When are you not able to charge someone with an attempt?
-the criminality depends on recklessness or negligence
an attempt to commit an offence is included within the definition of that offence
-the offence is such that an act has to have been completed in order for the offence to exist at all.
What is the penalty for attempts?
Unless expressly prescribed...
A term not exceeding 10 years imprisonment if the maximum punishment for that offence is life imprisonment and in any other cases is liable to no more than half the maximum punishment in all other cases.
-With intent to commit an offence
-Does or omits an act
-Whether it was possible to commit the offence or not
-to the full offence
Element -With intent to commit an offence
Discuss intent and define offence
Element - -Does or omits an act
Element -Whether it was possible to commit the offence or not
Discuss factually/physically impossible
Element - -sufficiently proximate
Must be close to the full offence. Beyond mere preparation.
Define - act
To take action or do something