Attempts to Commit an Offence

Question 1

Attempts

Answer 1

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 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 an attempt offence

Answer 2

Case law has established:

• 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

The suspect behaviour must satisfy all three conditions. Additionally there is a requirement that it must be legally possible to commit the offence, in the circumstances.

Question 3

Intent - established

Answer 3

When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.

Question 4

Case Law - Inferring intent from the act

Answer 4

R v Ring
In this case the offenders 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.

Question 5

A question of fact (jurys decision)

Answer 5

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

Question 6

Act or Omission

Answer 6

Act: to take action or do something, to bring about a particular result

Omission: The action of excluding or leaving out someone or something, a failure to fulfill a moral or legal obligation

*The purpose of the act or omission must be so that the offence can be facilitated

Question 7

Act(s) must be sufficiently proximate to the full offence

Answer 7

Section 72(3), Crimes Act 1961
Accused must have started to commit the full offence and have gone beyond the phase of mere preparation

Question 8

Several acts together may constitute an attempts

Answer 8

When the same acts are viewed collectively, they can take on a different context and therefore amount to a criminal attempt.
R v Harpur, sufficient evidence of his intent was available from the events leading up to that point

Question 9

Case law - Intent Attempt

Answer 9

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 10

The proximity test

Answer 10

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?
• has the offender actually commenced execution; this is to say, has he taken a step in the actual crime itself?

Question 11

Proximity is a question of law

Answer 11

Section 72(2), Crimes Act 1961
it is a question that is decided by the judge based on the assumption that the facts of the case are proved

Question 12

Elements that help determine proximity

Answer 12

There is no clear definition.
When determining proximity you must take into consideration fact, degree, common sense and the seriousness of the offence. These should be looked at in their totality and each on case-by-case basis

Question 13

Impossibility
Section 72(2)
‘whether in the circumstances it was possible to commit the offence or not’

Answer 13

The final line in 72(1) refer to a physical or factual impossibility and not a legal impossibility.
This means 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

Question 14

Case law - Physically or factually impossible

Answer 14

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

Question 15

Case Law - Physically or factually impossible

Answer 15

Police v Jay

A man bought hedge clippings believing they were Cannabis

Question 16

Legally Impossible act

Answer 16

Where the completed act would not be an offence - the suspect cannot be convicted of an attempt, even where they may have had criminal intent.

Question 17

Case Law - Legally Impossible act

Answer 17

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 18

Act is complete that is sufficiently proximate to the intended offence

Answer 18

Once the acts are sufficiently proximate, the Defendant has no defence that they:

• were prevented by some outside agent from doing the something that was necessary to complete the offence
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means
• were prevented from committing the offence because an intervening event made it physically impossible

Question 19

Function of the Jury and Judge

Answer 19

Judge must decide whether the defendant had left the preparation stage and was already trying to effect the completion of the full offence.

If the judge decides that the defendants action were more than mere preparation, the case goes to the jury.

The Jury must decide whether the fact presented by the crown proved beyond reason doubt and if so must decide whether the defendants acts were close enough to the full offence
If the jury finds that the actus reus has been established prosecutions evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence

Question 20

Unable to charge with attempt

Answer 20

• the criminality depends on recklessness or negligence (manslaughter)
• An attempt to commit an offence is included within the definition of that offence (assault)
• the offence is such that the act has to have been completed in order for the offence to exist at all (demand with menaces)

Question 21

Filing charges and the convictions

Answer 21

Where a defendant is charged with the full offence but is found guilty of attempts, they can be convicted of the attempt (section 149 Criminal Procedure Act 2011)

Where the Defendant is charged with an attempt, yet the full offence is proved, the defendant can only be convicted of the attempt (section 150 Criminal Procedure Act 2011)

Question 22

Penalties

Answer 22

Section 311, Crimes Act 1961
(1) every one who attempts to commit any offence in respect of which no punishment for the attempt is expressly prescribed by this act or by some other enactment is liable to imprisonment not exceeding 10 years if the maximum punishment for the offence is life imprisonment and in any other case is liable to not more than half the maximum penalty to which they would be liable of the had committed that offence