S72 CA61
Definition of attempts
(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 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.
(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.
3 conditions (elements) that must apply for an Attempt conviction to succeed:
- intent (mens rea) to commit an offence
- act (actus reus) that they did, or omitted to do, something to achieve the aim
- proximity that their act or omission was sufficiently close
(Inferring intent from the act) 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.
(Man hustling women at railway platform, puts his hand in one of their pockets. Woman not located to give evidence and no evidence that there was anything to be stolen in her pocket)
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
(Acts constituting an attempt) R v Harpur
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
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 inits entirety. Considering how much remains to be done us 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 - has he taken a step in the actual crime itself?
(Physical impossibility) 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 so commit the offence of attempting to cultivate cannabis.
(It was held that the offenders could be convicted of an attempt, because they acted with criminal intent)
(Physical impossibility) Police v Jay
A man bought hedge clippings believing they were cannabis.
It was held that the offenders could be convicted of an attempt, because they acted with criminal intent
An act that is physically or factually impossible
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.
An act that is legally impossible
Where the act completed would not be an offence, the suspect cannot be convicted of an attempt even where they may have had criminal Intent.
(Legal impossibility) 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 received it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.
(Suitcase containing stolen goods at luggage office. Police return it to owner. Donnelly came to retrieve suitcase. Not guilty as property was no longer deemed to be stolen)
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.
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 ieptitude, 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, example removal of property before intended theft
Function of the judge and jury
If the judge decides that the defendants actions were more than mere preparation, the case goes to the jury. 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 defendant’s acts were close enough to the full offence. The evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.
Unable to charge with attempt ( 3 points)
- 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. Eg, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence
S149 Criminal Procedure Act 2011
Filing of charges
Where a defendant is charged with the full offence, but is found guilty of only the attempt, they can be convicted of the attempt
S150 Criminal Procedure Act 2011
Filing of charges
Where a defendant is charged with an attempt, yet the full offences proved, the defendant can only be convicted of the attempt
S311CA61
Attempt to commit or procure commission of offence
(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 for a term not exceeding 10 years if the maximum punishment for that offence is imprisonment for life, and in any other case is liable to not more than half the maximum punishment to which he or she would have been liable if he or she had committed that offence.
(2) Every one who incites, counsels, or attempts to procure any person to commit any offence, when that offence is not in fact committed, is liable to the same punishment as if he or she had attempted to commit that offence, unless in respect of any such case a punishment is otherwise expressly provided by this Act or by some other enactment.
