Published on 16/04/2007

Attempt

If you attempt to commit an offence, your liable to the same penalty as if you did commit the offence.

For non-specific attempt cases such as for e.g. if it could be established that the accused, a block away intended to break off the aerial of a victim’s vehicle, using not an article but only his bare hands, would an attempt to maliciously damage property under s195 of the Crimes Act be established? - for such non-specific cases attention must turn to the common law.

* Section 344A provides for their punishment, but no definition of their physical and mental elements.

Section 344A – Attempts

1. Subject to this Act, any person who attempts to commit an offence for which a penalty is provided under this Act shall be liable to that penalty.
2. Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence.

· (subject to exceptions in respect to penalty, such as murder – the more serious the crime sought to be committed, the more culpable the attempt, and the different degrees of culpability will be reflected in sentencing.)

· Attempt to commit murder s29 Crimes Act sentence period of 25 years.

Elements of attempts

Actus Reus

· DPP v Stonehouse (1977) - Acts which are “sufficiently proximate” to completed offence, and not merely in preparation.

- Mr Stonehouse was going broke and decided he was going to do something about it; so he faked his own death - he had life insurance, his wife had the beneficiary à he was charged with attempting to enable his wife to obtain money by false pretences.
- Are his actions ‘sufficiently proximate’ or merely in preparation?
- Salmon adopted a causation approach, which is where it is considered whether the actions where ‘sufficiently proximate’ to the final offence.

· O’Connor v Killian (1984) - Adopts the ‘sufficiently proximate’ test.

- O’Connor received mail, not addressed to her. She was curious and opened the mail. There was a cheque so she opens an account in the name of the cheque. The teller gets suss and tells her he wants more ID. She feels guilty and decides not to go ahead with it. Police find her and she is charged with attempt.
- Judges found that she had done everything to get the money until the teller said something. It does not matter that she didn’t do it in the end - her actions were clearly ‘sufficiently proximate’.

Mens Rea

· In most crimes, the requisite mens rea is “an intention to bring about each element of the crime alleged to be attempted” (per Murphy J in Britten v Alpogut (1987).

· Alister (1984) - Attempted murder requires an intention to kill, not reckless indifference.

- Charged with attempted murder of police officer who stopped the car, Alister knew it was probable that the police officer would be killed if the bomb detonated.
- Judge found that recklessness is not sufficient. There must be intent to commit the completed offence - not just intend to cause GBH or injure but rather intend to complete the offence i.e. kill etc.

· Accordingly, a person who attacks another in tending to do him GBH will be guilty of murder if the victim dies, but not of attempted murder if he does not à ‘law’s requirements on a charge of attempting to commit a crime are stricter than on a charge of actually committing it; for the concept of attempt necessarily involves the notion of an intended consequence’ - Smith and Hogan (1978), p247.

· Attempt and conspiracy are not one in the same.

· Evans (1987) - Atempted sexual assault includes reckless indifference as to whether V consents.

- The appellant was charged with rape and convicted of attempted rape. He raised the issue of intoxication and gave evidence that he had gone to sleep at the relevant time and had no recollection of the alledged act of intercourse.
- It was held (on appeal): reckless indifference to the victim’s consent to sexual intercourse is sufficient to constitute a mental element for the crime of attempted rape.

Physical element of attempt

* Specific attempt offences define their required physical and mental elements à e.g. wounding with intent to murder which requires that the accused must have wounded the victim (physical element) with the intent to murder (menta element): Crimes Act s27.
* In Britten v Alpogut, the physical element required for attempt at common law was stated as being 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 are not seen to be merely preparatory to it.
* The act went beyond mere preparation à as discussed earlier.
* Alternative formulations employing phrases such a whether the accused has performed the ‘last act’ necessary to complete the offence (R v Eagleton) or whether his or her conduct was ‘unequivocally’ related to an intention to commit the completed offence (R v Williams) were adopted by the court of criminal appeal in Mai.
* Voluntary distance by the accused does not in itself prevent the physical element from being made out in the case of attempt (R v Page).

Attempting the impossible

· Impossibility may be (1) physical or factual, or (2) legal - e.g. of (2) would be where the accused attempts to commit what is no longer a crime.

· Haughton v Smith (1975) - It was impossible to commit the crime because the goods were in the police’s possession à it was held that an individual cannot be guilty of attempt, if it would have been impossible to commit the completed offence.

· Britten v Alpogut (1987) - can still be guilty of attempt even if impossible to commit the completed offence. “Attempts are crimes because of the criminal intent of the actor”.

- The defendant was charged under the Customs Act 1901 (Cth) with attempting to import cannabis. There was evidence that he believed that he was importing and intended to import cannabis. In fact, the substance imported was procaine, an anaesthetic which was not prohibited by the act.
- It was held (on dismissal of the information and the return of an Order for Review): The offence is proved if it is established that the defendant intended to import something which was, as a matter of law, a prohibited import and known by him to be so and pursuant to this intention, he did an act which was not merely preparatory but sufficiently proximate to the intended commission of the crime. It is irrelevant if the attempt fails because of a mistake of fact.

· Mai and Tran (1992) - the judge said: I interpret the law laid down in Britten v Alpogut and reject the law laid down in Haughton v Smith…when applied to the general law of attempt, as being that, in circumstances where it is in fact physically impossible for the accused to commit a particular crime, an attempt to commit that crime has nevertheless been proved if the Crown establishes:

(1) that the accused intended to do the acts with the relevant state of mind which together would compromise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed the crime), and

(2) that, with that intention, he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.