Exam

The

Principles

of

Criminal

Law

Notes

INCHOATE OFFENCES

SEMESTER ONE | 71

Notes

The

Principles

of

Criminal

Law

Attempts

*

All these things apply to most offences

Attempt to do and be a party to
SS? Problems emerge in murder cases
SS? This is because murder carries an element of intent

Criminal Code 1899: s4

Attempts to commit offences

(1) When a person, intending to commit an offence, begins to put the person's intention into execution by means adapted to its fulfilment, and manifests the person's intention by some overt act, but does not fulfil the person's intention to such an extent as to commit the offence, the person is said to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender's part for completing the commission of the offence, or whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender's intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. (4) The same facts may constitute one offence and an attempt to commit another offence.

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72 |

Key concepts of s4

Intending to commit an offence

Begins to put intention into execution by means adapted to its fulfillment

Overt act

Does not commit the offence
SS? prosecution does not have to prove that they did not commit the offence

Exam

The

Principles

of

Criminal

Law

Notes

Barbeler "the first three need to be proved. The fourth qualifies the others but does not need to be proved beyond reasonable doubt"

sometimes the only reason attempt is made, causation cannot be argued
SS? eg. diseased patient dies but the doctor thought they killed them - causation cannot be sure

*

Element 1 - Intends to commit offence charged Cutter

*

*

A policeman was arresting a man and he lashed out and stabbed the policeman in the neck with a broken bottle HC: you have to prove an intention to kill in attempted murder - stabbing itself is not necessarily an intention to kill but could be an intention to harm

Intention is more intense in an attempted murder

Element 2 - Begins to put intention into execution Difference between mere preparation and attempt

At what point of they grade together?
Terrorist setting off a bomb

Buy a metal pipe - preparation

Composing and assembling the bomb - preparation

Driving it to the place you want it to go off - closer to attempt

Depositing it there with the timer running - closer to attempt

Remote control?
SS? Speculative example of "attempt

*

*

Tests for where mere preparation becomes attempt

Last step test (not current test)
SS? Not an attempt unless all but the last step had been taken

* Difficult in sexual offences

* Not broadly applicable

* s4 (2) goes against the last step test

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Barker (NZ Case)

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The first step along the way to criminal intent is not necessarily sufficient. The final step is not necessarily required. The dividing line between these two extremes is somewhere in the middle but as to the method by which it is determined, the authorities give no clear guidance.

SEMESTER ONE | 73

Notes

The

Principles

of

Criminal

Law

William's Case

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*

*

An attempted rapist pinned a naked woman to the floor, struck her blows to the head and body, stuck his fingers in her saying he was going to "have her." Question was - was it an attempt or mere preparation (at the time of the case, penetration by any thing did not constitute rape)

Not entirely clear what test the course adopted Held: was an attempt

Where a person doesn't act and that act cannot be reasonably regarded as having any other purpose than that specific crime
SS? Unequivocality test Unequivocality test

the act done is unequivocal and cannot be interpreted as anything else other than an attempt to commit the crime
SS? this test also has not necessarily survived

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De Silva

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*

*

Attempted arson where whoever it was was splashing petrol around

The accused said it wasn't him It wasn't clear that the person who was doing it intended to put a match to it but there was some evidence that he did but was interrupted by the homeowner

Proximity test
SS? The act relied on must be an act immediately, not merely remotely, connected to the offence. What is done must go beyond mere preparation to commit the offence and must amount really to the beginning of the crime. It is not necessary that the defendant must have done his best or taken the last step towards the intended offence

* Test also in the Bench Book

Proximity test is the current standard in terms of intention and attempts however is still relatively broad are of law

Element 3 - Overt Act

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74 |

An act that is capable in principle of being observed by someone else

Attempt to murder in the dark by swinging an axe and misses
SS? Victim didn't see the axe swing and neither did anyone else, but this does not mean it is not an overt act

Usually a gun pointing or knife wielding

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