What are the three elements of an attempt offence?
Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed:
- Intent- to commit an offence.
- Act- That they did, or omitted to do, something to achieve that end.
- Proximity- That their act or omission was sufficiently close.
The suspects behaviour must satisfy all three conditions, at a minimum to constitute an attempt. Additionally there is the 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.
What was held in R v Ring?
Physically impossible
R v Ring (Physically impossible)
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.
What is a question of fact in regards to intent?
Whether that intent exists or not is a question of fact, a question that the jury decides.
Define sufficiently proximate to the full offence?
Section 72(3) Crimes Act 1961 outlines that the accused must have done or omitted to do some act that is/are 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- this is the “all but” rule.
Give 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.
- Possession, collecting or fabricating material to be employed in the commission of the crime.
- Soliciting an innocent agent to engage in conduct constituting an element of the crime.
What was held in R v Harpur?
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops, the defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative..
What is the test for proximity?
Simester and Brookbanks suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:
- Has the offender done anything more that getting himself into a position which he could embark on an actual attempt.
- Has the offender actual commenced execution, that is to say, has he taken a step
What was held in Higgins v Police?
Intent sufficient to charge
Higgins v Police (Intent sufficient to charge)
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.
What was held in R v Donnelly?
Legal title
R v Donelly (Legal title)
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 bee stolen or honestly 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 that is sufficiently proximate to the intended offence.
What is the function of the judge in an attempt case?
The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
The defendant need not have taken all steps necessary towards completing the full offence. of the judge decides that the defendants actions were more than mere preparation, the case goes to a jury.
What is the function of the Jury in an attempt case?
The jury must then decide whether the facts presented by the crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendants acts were close enough tot he full offence.
If the jury finds that the actus reus has been established, it must also find the same in respect of the mens rea- that is, the prosecutions evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.
When are you not allowed to charge someone with an attempt?
You are not able to charge someone with an attempt to commit an offence where:
- 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.
What must you prove in each case of Attempts?
In each case you must prove:
- The identity of the suspect.
- That they intended to commit an offence.
- They did, or omitted to do, something to achieve their object.
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 interruption from Police.
- Failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosives to blow apart a safe.
- Were prevented from committing the offence because an intervening event made it physically impossible, eg removal of property before intended theft.
