Attempt Legislation (1) Does or Omits
S72 CA61 (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.
Attempt Legislation (2) Question whether
S72 CA61 (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. - Decided by a judge
Attempt Legislation (3) Immediately or Proximately
S72 CA61 (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 the intent to commit that offence.
Three elements of an attempt
- 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/proximate
Also must be legally(not physically) possible to commit the offence
Definition of Offence/Crime
Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.
Intent
May be inferred from the act itself and/or proved by what they said
Must be to commit full offence
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.
Offence
They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in s6, Criminal Procedures Act 2011.
Act or Omission
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 fulfil a moral or legal obligation
Examples of attempts (American Penal Code)
- 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 enterring 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
R v Harpur
The court may have regard to the conduct viewed cumulatively up until 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.
Test for Proximity
- 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?
Elements that determine proximity
Fact
Degree
Common sense
Seriousness of the offence
Examples of physical impossibility
- R v Ring (hand in empty pocket)
- Higgins v Police (cultivating tomato plants)
- Police v Jay (buying hedge clippings)
Other examples might include a person failing to force open a door due to being too weak, or because they were interrupted by attending Police.
Example of legal impossibility
R v Donnelly (receiving returned stolen property)
Mistaken belief that act is illegal - selling Datura
Criminality depends on recklessness or negligence - eg manslaughter
Attempt already included - eg assault
Ultimate act required for offence to exist - demanding with menaces
When an attempt is complete
Act completed sufficiently proximate to intended offence, even when the defendant changes their mind or makes a voluntary withdrawal afterward.
Defence or lack of
- 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 explosive 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.
Function of Judge and Jury
Judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
Jury must decide whether the fact presented by the Crown have been proved beyond reasonable dought, and if so, must next decide whether the defendant’s acts are close enough to the 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.
Prosecution
If charged with attempt, can only be convicted of attempt. (s150 CPA)
If charged with offence, can be convicted of attempt (s149 CPA)
Attempted to… (wording of offence)
…& s72 CA 1961
Penalties
Unless expressly prescribed:
s311 CA 1961
10 years if offence is life imprisonment or
not more than half the max penalty
What must be proved
- Identity
- Intent to commit offence
- Did or omitted something to achieve their object
