Attempts to Commit an Offence Test

Question 1

What is meant by sufficiently proximate in Crimes Act 1961, Section 72(3) in relation to attempts?

Answer 1

The accused must have done or omitted to do some act(s) that is/are sufficiently proximate (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.

Question 2

Once an offender has commited acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to the charge. What are they?

Answer 2

• They were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from Police
• They failed to complete the full offence due to ineptitide, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
• They were prevented from committing the offence because an intervening event made it physically impossible, eg removal of property before intended theft.

Question 3

When is an act physically or factually impossible?

Answer 3

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.

R v Ring

Higgins v Police

Police v Jay

Question 4

What are the three elements of an attmpt offence?

Answer 4

• 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

Question 5

When are you unable to charge someone with an attempt to commit an offence?

Answer 5

• 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.

Question 6

Matt gets angry at his mechanic and takes a swing at his face but misses him. What is Matt charged with?

Answer 6

Assault

Question 7

Several acts together may constitute an attempt

Answer 7

Independent 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.

In concluding that Harpur’s conducte was sufficiently proximate to the full offence, the Court of Appeal held that his actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.

Question 8

What is the test for proximity suggested in Simester and Brookbanks

Answer 8

• 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?

Question 9

Example of legally impossible act

Answer 9

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 10

Security guard decides to burgle own workplace, drives to work to check alarm so he can burgle it later.

Answer 10

His actions are mere preparation.