ATTEMPTS SUPER-SUMMARY

Topic 10

INTRODUCTION
Attempts or inchoate offences attribute culpability to an accused despite the intended offence not having been completed.
The rationale for the offence not due Ds choice to hold back but to chance and opportunity for intervention to prevent the intended harm. Attempts = Inchoate Offences Attributes culpability to accused even though offence had not been completed

DEFINITION
Common Law Definition:
Murphy J in Britten v Alopgut [1987] VR 929 defined common law attempt as follows: a criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.

Common Law Definition now replaced by statutory definition in s321N

The common law offence of attempt has been replaced by a statutory form found in s.321M Crimes Act 1958 (Vic).

MENS REA
The Requirements for Attempts are set out as follows: s.321N, which provides that conduct must be more than merely preparatory to the commission of the offence in question and immediately and not remotely connected with the commission of the offence. S.321N(2) provides that D must intend the completion of the offence AND intends or believes that facts or circumstances that are elements of the offence will exist when the offence takes place.
It is not enough that D knew or foresaw that his act would be likely to result in the commission of the offence nor will it be sufficient to prove a reckless state of mind - R v Mohan [1976] QB 1;

321N = conduct more than preparation for commission of the offence AND is immediately connected with the offence 321N(2) = D intends completion of the offence OR believes that the facts/circumstances forming elements of the offence will exist when the offence takes place Not enough for attempts: 1. Foreseeing the likelihood that the result will result in the commission of the offence, or 2. Reckless state of mind Intent [to complete the offence] is required and it an intent which must be based upon knowledge or belief of the necessary facts.

Giorgianni v The Queen (1985) 58 ALR 641 the High Court stated that

Intent is required and it an intent which must be based

upon knowledge or belief of the necessary facts.

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ATTEMPTS SUPER-SUMMARY
See R v Evans (1987) 30 A Crim R 262

Topic 10
Guilty of attempted murder only if D intended to kill. Intention to commit GRIEVOUS BODILY HARM not adequate for attempted murder.

The High Court held that an accused will not be guilty of attempted murder unless he intended to kill. This was because the intention which must accompany the inchoate crime of attempt is an intention to commit the complete offence. - Knight v The Queen (1992) 109 ALR 225

ACTUS REUS There is a difference between attempts and mere preparation.

There must be steps taken towards the commission of the offence.

Tests to determine at which point the attempt occurred are:
1 last act test an attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. proximity rule the defendants conduct need not reach the last act but must be "proximate" to the completed crime. part of a series of acts test an attempt should be evidence by an overt fact forming part of a series of acts which, if not interrupted, would end in the commission of the offence. remoteness test [A]cts remotely leading towards the commission of offence are not to be considered as attempts to commit it: but acts immediately connected with it are
Dangerous proximity" test an attempt occurs when the defendants conduct is in "dangerous proximity to success," or when an act "is so near to the result that the danger of success is very great. an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan. an attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. an attempt occurs when a persons conduct, standing alone, unambiguously manifests his criminal intent.

2 3

There must be steps taken towards the commission of the offence. Eight Tests

6 7

Indispensable element test Probable desistance test

Unequivocality (or res ipsa loquitur) test

R v Gullefer [1990] 1 WLR 1063 The appellant had climbed onto the fence of a greyhound racing track. The Court of Criminal Appeal held that it could not properly be said that his actions at that stage were in the process of committing Page 2 of 5

ATTEMPTS SUPER-SUMMARY
the theft. They had not gone beyond mere preparation. Applying the words of the Act of1981 Lord Lane LCJ at 1065C said: Was the appellant still in the stage of preparation to commit the substantive offence, or was there a basis of fact which would entitle An attempt to commit a crime is an act done with intent to commit that crime, and forming part of the series of acts which would constitute its actual commission if they were not interrupted. R v Jones [1990]1 WLR 1057 D was convicted of attempted murder. On appeal it was submitted that there was insufficient evidence to support the charge because D would have had to perform at least three more acts before the full offence could have been completed, namely removing the safety catch of the sawnoff shotgun that he was pointing at his victim, putting his finger on the trigger and pulling it.

Topic 10

dismissed. There was sufficient evidence to justify a jury finding that Ds acts were more than merely preparatory: R v Jones [1990] 1 WLR 1057.
Held, appeal Attorney Generals Reference (No.1 of 1992) [1993] 2 All ER 190 D grabbed V, pulled her behind a hedge, forced her to the ground and lay full length on top of her

In attempted rape, it is not necessary to prove that the defendant had gone as far as to attempt to physically penetrate the vagina. It is sufficient if there is evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence.
remoteness test and the last act test are found in the judgement of Parke B in R v Eagleton (1885) Dears CC 515 Linnekar [1906] 2 KB 99 (CCR) Kennedy J held that an attempt should be evidence by an overt fact forming part of a series of acts which, if not interrupted, would end in the commission of the offence. The remoteness test was applied in R v Robinson [1915] 2 KB 342

It does not matter if voluntarily ceases to continue or because of circumstances beyond Ds control. This is insufficient to answer a change of attempt in R v Page [1933] VLR 351. See also R v Lankford
[1959] Crim L Rev 209. R v Page [1933] VLR 351 - Note that an accused may still be guilty of attempt even if he voluntarily desists before the intended crime is carried out, as long as his conduct is more than merely preparatory

Attempt still possible even if D voluntary ceases as long as his conduct is more than preparatory

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ATTEMPTS SUPER-SUMMARY

Topic 10

Impossibility
What then is the situation where there exist circumstances that mean that it would have been impossible for D to carry out the acts required for the substantive offence? Will D still be guilty of an attempt?

Two different forms of impossibility have been identified:

Factual (physical impossibility) - where D tries to poison V with a substance believing it to be a lethal poison when it is merely salt or another innocuous substance. Until the decision in R v Smith [1975] AC 476, the position of the courts had been fairly clear, namely that this would not be sufficient to defend a charge of attempt. Legal impossibility - where D believes his acts to be illegal when in fact they are not illegal. This will not amount to an attempt as an attempt to commit a non criminal act cannot be criminal in itself.

Types of impossibilities: 1. Factual impossibility 2. Legal impossibility

Haughton v Smith [1975] AC 476 (or R v Smith), the House of Lords distinguished between situations which were factually impossible because of the accuseds own incompetence or where he lacked the means to carry it out (insufficiency of means), such as: insufficient poison in which case the accused would be guilty of an attempt; and situations beyond the accuseds control, which rendered the desired end result factually impossible - such as turning around to hit someone who is no longer there. In this case, impossibility may amount to a defence. See Haughton v Smith, [1975] AC 476 - The goods were no longer considered to be stolen goods as they were in the custody of police. This being a case of physical impossibility (as distinguishable from the accused lacking the means or being incompetent to complete the act) he could not be guilty of an attempt. 1. 2.

Factually impossibility because of: 1. Accuseds incompetence 2. Accused lacking the means to carry it out

This approach has been overturned by legislation in England and Australia providing that factual impossibility is not relevant to determining an attempt

FACTUAL IMPOSSIBILITY IRRELEVANT IN DETERMINING ATTEMPT.

R v Shivpuri [1986] 2 WLR 988 - The

FACTUAL IMPOSSIBILITY IRRELEVANT IN DETERMINING ATTEMPT.

House of Lords in Shivpuri made it clear that the only kind of impossibility which is relevant to liability is true legal impossibility. (In short, it is no defence to a charge of attempt that the substantive offence is actually impossible to commit). The House of Lords held that on the true construction of the section, a person was guilty of an attempt merely if he did an act which was more than merely preparatory to the commission of the offence which he intended to commit even if the facts were such that the actual offence was impossible.

Only legal impossibility can negative liability in attempts

Physical impossibility will not be relevant to an attempted commission of an offence.

In Britten v Alopgut [1987] VR 929, Murphy J explained: Attempts are crimes because of the criminal intent of the actor. A man who intends to kill V and who picks up a gun believing it to be loaded, and who points it at V and pulls the trigger is guilty of an attempt to murder V, even if it transpired that the gun was not loaded... The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if the intention amounted to an actual crime, then it matters not that the gun is in fact

Physical (factual) impossibility of committing the crime does not negative the attempt

unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over 16, or the pocket is empty, or the safe is too strong, or the goods are not cannabis.
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Topic 10

Defensive Homicide and Attempts

S.4 Crimes Act 1958 (Vic) however now provides for an alternative verdict of defensive homicide on charges of murder, and by virtue of s.9AB, defensive homicide is a relevant offence to which Subdivision 1AA applies.
In R v Pepper (2007) 16 VR 637 - Exceptions to Homicide Offences. These provisions were considered under Topic 5, Whelan J considered whether subdivision 1AA34 Crimes Act applied to a charge of attempted murder. He concluded that the subdivision did apply and further, that where selfdefence arises in relation to a charge of attempted murder, the alternative verdict of attempted defensive homicide could be left to the jury - This reasoning was followed by Teague J in DPP v McAllister [2007] VSC 315; and see also Coghlan J in R v Carrington (2007) VR 694.

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