Attempts to Commit an Offence Flashcards
(7 cards)
Definition of attempts
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 wehter 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 attemp 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
- 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 ommission was sufficiently close
Inferring intent from the act
The intent of the offender may be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).
R v Ring
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.
Act(s) must be sufficiently proximate to the full offence
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.
Examples of acts that may constitute an attempt to commit an offence:
- 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 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.
Several acts together may constitute an attempt
Indepedent acts, when viewed in isolation, can be construed as preparatory. When the same acts are viewed collectively, they can take on a different context and therefore amount to a criminal attempt.
R v Harpur
“[The Court may]” have regard tot eh conduct viewed cumulatively up to the point when the conduct in question stops … the defendant’s conduct [may] be considered in it entirety. Considering how much remain so tbe done … is always relevant, though not determinative.
When an act is physically or factually impossible
R v Ring
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.
Police v Jay
A man bought hedge clippings believing they were cannabis.
When an act is legally impossible
Where the completed act is legally impossible - that is, 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.
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.
