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Attempt And Conspiracy Notes

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Attempt - s 72 (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 offence intended, whether in the circumstances it was possible to commit the offence or not a) Attempts are category #1, express mens rea offence. Must have an intention to commit an offence b) Actus reus: must do/omit an Act. (not negligence, recklessness). c) Reference to impossibility i) e.g. Where you try to pickpocket someone, but they have no wallet. Our law still makes someone liable for attempt here. ii) Donnelly - glosses this, some situations where it is so impossible we can't find them guilty. (2) The question 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. 1) So the judge decides where an act is preparatory (too remote), or can be construed as attempt. (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 the offence. 1) Concentrating on the physical (actus reus) side of the offence. 2) Set out rules/guidelines to help decide when the acts will and will not amount to an attempt.

Mens Rea Intention must be to commit the offence. Attempted murder DNE intention to commit GBH + recklessness, instead intention to kill - higher standard - R v Murphy [1969]

A "state of affairs which the accused decides to bring about ... By his own act of volition": R v Mohan [1975]
If full offence is reckless driving causing harm, attempt must be intention to cause harm. Despite it being attractive not to make an attempt harder to establish than a full offence. Evidence of knowledge or foresight of likely consequences is evidence by which intent may be established, but is not equated with intent. Intention may exist even if an intention to commit offence is subject to a reservation that it will be abandoned in unfavoura ble circumstances
- Police v Wylie [1976] - procuring drugs, depending on price, quality, quantity etc. Requisite intention must exist contemporaneously with sufficiently proximate act - Wilcox Mere recklessness as to essential circumstances will suffice - R v Kahn [1990] (attempted rape) Where substantive offence consists of an underlying intention to produce the result, and another state of mind directed to some other circumstance or act, only the result requires intention: don't need to intend that victim is not consenting. If an offence is couched purely in terms of recklessness, there can be no attempt of it. If offender attempted the actus reus and had the requisite mental element, then recklessness as to other events suffices. The re is no question of attempting to be reckless. The prosecution must show an intention to do the AR, together with the remaining state of mind. Elements of aggravated arson:

1. Damage to property by fire

2. A specific intent to cause damage to property by fire

3. And also intended to/were reckless as to whether life was endangered. CA found that Khan was applicable, so the additional circumstances only require recklessness, no higher standard than the full offence. Will suffice that the accused intended the event and was reckless as to the further consequence.
- AG's Reference (No 3) (1994) R v L [2006] NZSC - approves Khan, intention goes only to the actus reus of the offence, the requisite type of mens rea for other circumstances (e.g. Consent, reasonable belief of consent) do not arise. A required mens rea element (consent) is concerned with conduct which would have constituted the fu ll offence, not conduct w hich amounted only to an attempt. The focus must be on the prohibited act.

Actus Reus - proximity Not every act or omission done for the purpose of accomplishing the criminal object will be sufficient to lead to conviction - Wilcox [1982]
R v Wylie [1976] CA Attempting to procure cocaine Police answered phone (executing search warrant) Discussed price Respondents telephoned a house

Price discussed again

Said what they wanted

Greeting at door by PO

Took $650 with them, arrived

Police then intervened. Asked to see 'gear' Held: Actus reus not to be viewed in terms of contract law (offers), but rather real question whether the respondents had left the stage of preparation behind and were already trying to procure cocaine. No precise test for finding proximate acts - left to common sense. Here: a real and practical step towards procuring cocaine, not just preparation. Court focussed not on what was left to do (not 'last step' test), but what had already been done, retrospective. Criminal Page 14

Here: a real and practical step towards procuring cocaine, not just preparation. Court focussed not on what was left to do (not 'last step' test), but what had already been done, retrospective.



R v Wilcox [1982] CA Wilcox and Wilson planned to rob a post office on the outskirts of Napier First purchased air rifles and pellets Met an acquaintance with a mini, who agreed to drive them to the post office Want disguises, so Nixon went and bought balaclavas, and called police to warn them. 1km away from post office on 3km journey, police stopped car, charged with attempted aggravated robbery Held: Independent acts of mere preparation cannot take on a different quality through accumulation, or give further significance to a future act which was itself preparatory in nature - perhaps an unnecessarily inflexible rule (the quality of an act should be viewed in its context). Transportation to the scene of the attempt is preparation - if the car broke down on the way, would be against common sense to say an attempt took place.
- Focuses on what was left to be done, not what had already been done, like in Wylie.
- Police were right to stop actions then, not based on attempt, but on basis of the conspiracy to rob. Act/omission must be 'immediately or proximately connected" with the intended offence, not simply "preparation" and too remot e - Wilcox Henderson v The King (1948) Supreme Court of Canada Would-be robbers drove car as far as outside bank, saw a police car there, so got cold feet and drove away. Majority: getting to the place where the offence is to occur = attempted robbery. Minority (Tascherau J): not attempt, require a closer relation between victim and author - need a commencement of execution, step in the commission of the actual crime itself. Demands closer nexus between attempt and offence. R v Yen [2006] CA Attempted sexual connection with a child under the age of 12 years (s 132(2)) Yen had lowered pants, exposed penis, invited 5 year old to perform oral sex. Court: whether an act is a "real and substantial step" depends on examination in light of acts going before and those remaini ng to follow. 'Last step' analysis: there was no further act that Yen was required to do for the offence, so R v Deutsch (1986) SCC - cited in Yen Qualitative question, involves relationship between nature and quality of act in question and nature of complete offence. Take into account the relative proximity of the act to the completed offence in:
# Time
# Location
# Acts under control of accused remaining to be accomplished. Drewery v Police (1988) HC D torched a car as part of a fraudulent insurance claim which Bell would make. The claim was never made. HC if the evidence of intent was strong, the proximity/immediacy may not have to be so great as in cases where evidence of in tent is to be drawn from the nature of the act itself. --> doubted in later cases. Confuses distinction between actus reus and mens rea of offence Drewery had done the only and final act he had to do towards the final offence, intending to be paid once the full offence wa s committed . His actions together with the principal's (Bell's) acts were seen as a 'real and practical step'. But D did not intend to commit offence himself, so could only be guilty of attempt on basis of being a secondary party to a sufficiently proximate act - but all Bell had done was arrange for car's destruction (a preparatory act). While a party could be party to an attempt by aiding an abetting, it is doubtful that one could be convicted of attempting toaid and abet. R v Hoenderdos (1992) HC Attempted murder, acts: trying to tranquilize the victim so that D could drown her in bath (next door). If neither the place nor time of intended full offence were not remote, this is material to proximity. A substantive offence may require a series of physical acts, and once the first step has commenced, the attempt has begun. Here, once he seized the complainant and started to spray a substance into her face. On the other hand, driving to chch under false name, putting on gloves, entering house = preparatory. R v Beveridge (2001) HC Attempted murder D's estranged wife at the farm homestay

* Acts:

* Broke into the wife's house carrying a sharp knife

* Tied up his wife and raped her, with the knife held at her neck

* Told his wife that he intended to kill her

* Wife then managed to start a conversation with him and calm him down

* Were his actions proximate or only preparatory?

* The Court took the Wylie approach and held that:

* Although he never tried to kill wife, he took substantial steps towards achieving that end.

* His actions were proximate from the point at which B tied up his wife, where the assaults commenced were intended to finish in her death.

* There were 'real and substantial steps towards' the commission of the offence Last act approach: R v Eagleton (1855)- not determinative in NZ. R v Bobos [1993] District Court

1. Attempted burglary of a supermarket

2. The cops found B hiding in some bushes with a crowbar nearby a. Criminal Page 15

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