Inchoate offences - attempts

s311 Crimes Act 1961

(1) Anyone who attempts to commit an offence, for which no punishment is otherwise provided, is liable to imprisonment for a term not exceeding 10 years if the maximum term is imprisonment for life, and in any other case HALF of the maximum imprisonment. (2) Parties who incite, aid abet etc the offence, when that offence is not actually committed, will be treated as if they had attempted to commit the offence (i.e. parties are liable to same punishment as in (1)).

Mere Preparation

Actions which are NOT done "for the purpose of accomplishing his object" will NOT constitute 'attempts' under s72. I.e. acts of mere preparation will be too remote. Must distinguish preparation from execution.

s72 Crimes Act 1961

Attempts: (1) Everyone 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 intended offence, whether in the circumstances it was possible to commit the offence or not. (2) The question of whether an ACT is done 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, 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.

Johnston v R (2012) NZCA

FOLLOWED HARPUR. 16 yr old girl sleeping in a sleep out. Her father went outside and found the accused crouching on the lawn, wearing dark clothes, lurking around sleepout. He had been seen in the area before, and had a history of previous convictions for rape. He was charged with attempted rape. He argued that he was intending to carry out a robbery. Here the court said a more remote actus reus will be accepted IF THE INTENT IS CLEAR. Here, the actus reus was remote (just lurking). However, IF it could be shown that, talking all evidence into account, that he had clear intent to rape, this would be enough. In other words, it is the CONDUCT AS A WHOLE, in CONJUNCTION WITH MENS REA that will be taken into account to consider if there is an attempt.

R v Austin

Factual impossibility: Accused provided a substance which he believed could procure an abortion, which was illegal. In fact the substance would not have done this. Held: STILL guilty of an attempt.

Police v Jay

Factual impossibility: Person charged with possessing cannabis. In fact, the bag contained vegetable matter. He believed it was cannabis: Guilty of an attempt.

R v Ring

IMPOSSIBILITY: attempting to commit a crime that is impossible to commit. Factual impossibility: Pickpocket puts his hand into victim's pocket, with intent to steal. There was nothing in the pocket, so he could not have stolen anything. It is only a factual bar that stops the offence from being completed (if there was money in there, the offence WOULD have been completed).Held: accused was GUILTY of attempted theft, even though in fact this was impossible to complete.

R v Shivpuri

Impossibility: Factual impossibility: Charged with attempt of harbouring heroin. He was carrying powder he though was heroin, but in fact it was not. Held: still liable for attempt.

Inchoate means

Incomplete, or not-developed. Criminal conduct that has been embarked upon, but not completed. usually, someone can not be criminally liable for their thoughts alone, some act is required for criminal liability.

R v Donnelly NZCA 1970

LEGAL IMPOSSIBILITY: Person charged with attempting to receive stolen property. He went to lost luggage counter and wanted to uplift the stolen property that was there. The police had already recovered these goods, meaning that they were no longer classed as "stolen". He was charged with an attempt to receive stolen property. Legal impossibility: it was legally impossible for him to complete the offence, because the property was no longer 'stolen'. CA accepted this - s72(1) is confined ONLY to cases of factual impossibility, it does NOT apply when it is legally impossible to commit the crime. CANNOT BE LIABLE for an attempt when it is LEGALLY IMPOSSIBLE to complete the offence.

Attempts - rationale

Mens rea is critical. Problems of principle: 1. should a person be punished where ultimately no harm is done? 2. morally speaking, the person who attempts to kill someone, but through luck or accident fails, is as morally blameworthy as a person who succeeds 3. the law says: the person who takes steps towards committing an offence with a guilty mind, remains criminally liable and punishable because of the moral character (even though the offence is not physically complete) 4. people often do not succeed because of the intervention of police etc. Practical difficulties: how long must the police wait to apprehend the person? If too early, there may be no evidence of an attempt. 5. what conduct must be established for a person to be guilty of an attempt?

R v L

Mens rea of attempts: Sexual violation requires INTENT , but also awareness of the state of mind of the victim. Crucial element is lack of consent. Facts: woman trying to sexually violate a boy. Issue: could she be liable for attempted sexual violation? Sexual violation requires that there is no belief in consent. Not possible to prove an attempt to BELIEVE something. Held: in cases where the legislation contains a number of elements to the full offence, the only difference between the attempt and the completed offence would have been that sexual violation DID occur. The state of mind for the attempt must be the same as that for the full offence. i.e.: Must be shown that the offender had no belief in consent.

Omissions

s72(1) refers to acts or omissions. Usually cases consider acts, rather than omissions. BUT the suggestion is for example that suppose a doctor had a DUTY to care for a patient, and with intention to kill the patient deliberately failed to act. This would be an attempt to kill by unlawful omission. There MUST be circumstances where there is a DUTY to act, and a failure to do so WITH INTENT to accomplish an offence.

Actus reus

THere are various modes in which the actus reus of an attempt may be performed: 1. CLEAR ACTS towards the actus reus 2. WORDS - often in sexual cases

Factual impossibility vs Legal impossibility.

The rule is, if it is FACTUALLY impossible to commit the offence, this does NOT prevent the accused from being liable for an ATTEMPT. THey have the required mens rea, and have ATTEMPTED to commit the full offence (even though this was factually impossible to complete). NOTE that you CANNOT be guilty of an offence if it was LEGALLY impossible to complete it. NOTE that this could be subject to change - following the Canadian decision US v Dynar.

Mens rea

This is the critical point of an attempt - because the actus reus is not complete, it MUST be shown that the defendant had the required mens rea for the proposed crime. Courts suggest that there cannot be an 'attempt' to do something that requires mens rea of recklessness - you either are or are not reckless, you cannot attempt to do so.

R v Nichols

Actus reus: Possession Appellant charged under Biosecurity Act as a party attempting to possess unauthorised goods. He was caught with reptiles at customs. He argued that he was already in possession when caught, so could not be guilty of an ATTEMPT to possess. Court said that the legislation creating the offence ONLY made it an offence when he attempted to pass them through customs. His acts WERE an attempt because he was attempting to bring them into NZ. Elements of offence were possession of unauthorised goods, and knowledge. Attempting this offence INCLUDES attempting to bring about this state of affairs (by getting them through customs). Held -this was a valid attempt.

R v Grant

Actus reus: Possession. Accused charged with being in possession of a narcotic. Someone had found on the street a bag containing cannabis, picked it up and took it to Police. Police, assuming it was left there for someone to collect, filled the bag with newspaper and put it back. Someone picked it up, and was then charged with being in possession of a narcotic. Act said "no person shall have any narcotic in his possession". Here, the accused had NOT picked up any drugs, so he was charged with an ATTEMPT to be in possession of cannabis. Held: being in possession was NOT an act or omission under s72(1), it was a state of being. This would mean that it would NOT be possible to convict anyone with an attempt to possess, because you either are or are not in possession. BUT, see Willoughby decision.

R v Willoughby

Actus reus: Possession. Court disagreed with Grant - there CAN be an attempt to possess. Accused met a woman to get heroin off her. She had been asked to get the heroin and brought a packet of it to give to accused. Accused did NOT take the packet because he thought it had the wrong amount. He was charged with attempting to have heroin in his possession. Court said possession can be active or passive (eg by realising that someone has put drugs in your bag, and doing nothing to get rid of them). It can NOT be that all possession offences can't be attempted, as Grant suggests. Held: there CAN be an attempt to be in possession, provided there is an INTENT to be in possession, there WILL be an attempt.

R v Yelds

Actus reus: Words Accused charged with carnal knowledge of underage girls. He offered girls money to take him to a place and made indecent remarks to one of them. HIs intention was clear, AND it was held that he HAD done an ACT towards achieving him object (by his words and offers of money).

R v Barker 1924 NZ

Actus reus: Words Accused gave to a boy a note and asked him to meet him that evening to have some 'fun'. He followed up with more notes. Boy went to police, and they went to the place where the man had planned to meet the boy. Issue: his intention was clear, BUT did he do an ACT or OMISSION for the purposes of s72(1)? Held: YES, words are evidence of intention, AND they can be regarded as an 'act'. Common law test for proximity: NZ TEST: CA suggested that the "last act" test in Eagleton was NOT the law in NZ. Instead, they suggested the "unequivocal act" test - whereby the act must clearly and unequivocally be a step towards the offence. This is NO LONGER the law, because of s72(3): act must be "immediately and proximately connected with the intended offence".

R v Rowley

Actus reus: Words Notes left for boys in public places, and suggested that they should act as his pretend sons in exchange for sweets or money. Police surveillance showed he was interested in sexual activity with boys. Issue: were the notes "acts" within the meaning of s72(1)? There was nothing in the notes to link the accused with any particular intended offence. He was carrying out the preparatory steps to engineer a meeting. BUT, no particular connection established. Held: he had not yet taken steps towards an attempt (he had not targeted any specific boys etc).

R v Harpur (2010) NZCA - Test for proximity

Common law test for proximity: LEADING NZ case: The REAL or SUBSTANTIAL test CA considered the 'substantial steps' test, and said it was a good test, BUT it would really just substitute one set of "fuzzy words" for another (being the words of s72). The court did NOT commit itself to a particular test. The wording of s72 is very wide, there are no definitive set of principles/test to describe the conduct that constitutes an attempt - just BROAD PRINCIPLES: - must not be mere preparation - must be sufficiently proximate to the intended offence. The word "act" is read to include "actS" of the accused - so it is possible to look at ALL the conduct of the accused in its entirely, with the idea that ATTEMPTS CAN BE CUMULATIVE. It is also relevant to consider what is LEFT TO BE DONE to complete the offence, but this is only ONE relevant factor. Court left the law flexible, to consider each case on its merits. Mens rea should be considered together will ALL the other factors (rejecting Wilcox).

R v B

Common law test for proximity: NZ TEST: The REAL or SUBSTANTIAL test B obtained a knife, sharpened it, tied up his intended victim and told her he would kill her, but did not. Here, SUBSTANTIAL steps had been taken with the INTENT to commit murder.

Police v Wylie 1976 NZ

Common law test for proximity: NZ TEST: The REAL or SUBSTANTIAL test: Court said there was no abstract test, it was a matter of common sense in each case. But, the court nevertheless said that in this case, the accused had taken some "real, substantial, practical" step towards committing the offence. Offence was attempting to procure cocaine. Police executed a search warrant, and while they were there a phone rang and a person said they wanted to come pick up some drugs. The buyer showed up, and police were in disguise. Negotiations made between cops and buyer about price of drugs. No sale was made. Buyer charged with attempt to procure cocaine. Held: his real steps of calling, going to property etc were enough for an attempt.

Henderson v R

Common law tests for proximity: "Commencing to put intention into execution:" Accused planned a robbery, got close to the bank, saw police and ran away. Court held that all they had done was get themselves to the location, but had NOT taken any step in the commission of the crime itself.

DPP v Stonehouse

Common law tests for proximity: "Crossing the rubicon" - The point of no return test: English MP took out a number of life insurance policies, and then disappeared. He then fabricated his own death, and was discovered in Australia, before insurance money was paid out. Charged with attempt to obtain property (money from insurance company) by deception. Held that he had done everything possible to complete the act, he had "crossed the rubicon" - past the point of no return. Held: valid attempt.

R v Eagleton

Common law tests for proximity: "The last act" / "immediate connection" test: "Acts remotely leading towards the commission of the offence are NOT to be considered as attempts to commit it, but acts IMMEDIATELY connected with it are" Accused was charged with attempting to obtain money fraudulently. He was caught before getting money, but had taken ALL steps towards doing so. Held: he had done ALL acts within his control, these were immediately connected with the offence, so it was a clear attempt

R v Harpur - facts

Leading case on s72. The wording of s72 is very wide because it has to cover a great range of possible circumstances. Matters that are merely preparatory are NOT considered as attempts. It is a LEGAL question whether an act is merely preparatory. Facts: man using false name began text relationship with a young woman. He sent a number of sexually explicit texts, and bragged about his sexual exploits with children. She told the man she would bring her young sister and niece (who did not actually exist). The man made it clear that he wanted the girls for sexual purposes. A policewoman went to the meeting, instead of the woman. Man was arrested and charged. Question: were these acts too remote to constitute attempts of sexual violation of children? Preparation or an attempt? Court said that his INTENTION was clear, the issue was about his conduct. HIs act went BEYOND mere preparation. 1. s72(1) was very broad, and read literally would encompass ANY act for the purpose of accomplishing an offence. BUT this was not Parliament's intention, some acts are too REMOTE to be 'attempts'. 2. Parliament intended the courts to have a FLEXIBLE approach, to account for justice in each case. 3. s72(2) is to clarify the separate function of the judge and jury - stipulating that whether an act is mere preparation, or an attempt is a question for the JUDGE, not jury. 4. s72(3) every single act need not be unequivocally towards committing the offence, as long as the OVERALL PICTURE is that of an attempt.

US v Dynar (Canada) 1997

Legal impossibility: Canadian courts took the view that the legal v factual impossibility distinction is NOT tenable, it makes no difference, and you can still attempt a crime EVEN IF it was legally impossible to complete. Facts: Accused was set up in a money laundering case. They were given money that he thought was the result of illegal trafficking. In fact it was a trap - the money was not the proceeds of crime, so legally he could not have committed the offence of receiving money from crime. Held: it does NOT matter if it was a legal or factual impossibility - should still be liable for an attempt. Only case where a person would not be liable for an attempt is where a person was committing an "imaginary" crime - eg a person who thinks it is a crime to import sugar (can't attempt a crime that in fact does not exist). This has NOT yet been accepted in NZ.

R v Wilcox (NZCA) 1982

Since OVERRULED BY HARPUR. Put heavy emphasis on what REMAINs to be done, as opposed to what HAS been done. D charged with attempted aggravated robbery of post office. He and others brought air rifles and balaclavas and arranged a car to take them to post office, and set out on journey. About 1km before getting there, police intercepted them. Court followed Henderson, and said that this was MERE PREPARATION. Based this on the fact that there was a LOT that remained to be done for completion of the offence (1km away - further than in Henderson etc). It was not sufficiently proximate. Since overruled by Harpur - which said that what remains to be done is ONLY ONE of many relevant considerations (such as mens rea etc).

R v Page

WITHDRAWAL from an attempt: Accused got to the point of inserting a lever in to prise a window open in a burglary. He then changed his mind and withdrew before opening it. Held that this was too late - he had attempted the offence. You CANNOT WITHDRAW ONCE YOU HAVE COMPLETED THE ATTEMPT. (but, if you change your mind during the mere preparatory stages, you will NOT be liable).

R v Burrett (2004) NZHC

Would now be decided differently after Harpur: People conspired to kidnap a businessman and hold him to ransom. They obtained a gun, ammunition and prepared the bunker in the bush to keep him in. They were on their way to kidnap the victim, and the police were there waiting for them. They were arrested. They argued mere preparation, not an attempt. Court followed Wilcox, there was not sufficient proximity because of the distance between where they were caught and the point of kidnap, and the bunker etc. Said that they could not combine all the factors to show an attempt. This would be decided differently since Harpur.