s72 of the crimes act 1961
definition of attempts
1) everyone who having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the intended offence, whether in the circumstances it was possible to commit the offence or not
2) the question of 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
what are the three elements of an attempt offence
- intent mens rea - to commit the offence
- act actus reus - they did, or omitted to do, something to achieve that end
- proximity - that their act or omission was sufficiently close
suspect behaviour must satisfy all three conditions to constitute an attempt
r v murphy
when proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. for example in the case of an attempted murder, it is necessary for the crown to establish an actual intent to kill
how can intent be inferred
intent may be inferred from:
- the act itself (what they did)
- and/or proved by admissions or confessions (what they said)
eg. attempted burglary:
- burglars admission they went to property with intent to commit burglary
- burglars being found in possession of tools or disguises at the back door of a property before actually entering
intent is a question of fact to be decided by the jury
what examples are set out in the American Penal Code 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 a 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
what is the test for proximity
simester and brookbanks suggests the following questions in determining the point mere preparation may become an attempt:
- 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
if so then there has been an attempt if not it may be classed as mere preparation
what are the elements that help determine proximity
- fact
- degree
- common sense
- seriousness of offence
what is impossibility
a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit
when is an act 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
when is an act legally impossible
when the completed act would not be an offence - the suspect cannot be convicted of an attempt even where they had criminal intent
eg. r v donnelly
what is the function of the judge and jury
the judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence before the case goes to the jury
the jury must decide whether the facts presented by the crown have been proved beyond a reasonable doubt and, if so must next decide whether the defendant’s acts are close enough to the full offence
when are you not able to charge someone with an attempt
where:
- 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
what must be proven in each case of an attempt
- identity of suspect and
- that they intended to commit an offence, and
- they did or commit to do, something to achieve their object
to succeed in an attempt conviction what three conditions must be present
- intent (mens rea)
- the act (actus reus)
- proximity or sufficiently close
once an offender’s act is found to be sufficiently proximate to the offence, what three situations do not amount to a defence of that charge
that they:
- were prevented by some outside agent from doing something that was necessary to complete the offence eg. interruption from the 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 crime because an intervening event made it physically impossible eg. removal of property before intended theft
