attempts

Overview

This section will examine the law governing attempts - an inchoate (latin - incomplete) specie of criminal liability. It will examine the issue of proximity (how far a person must progress toward the completion of the offence to constitute an attempt), mens rea and the problem of physical or factual impossibility (where the crime is impossible to complete due to a factual mistake made by the defendant).

Actus Reus of Attempt: the proximity tests

Attempt is a common law misdemeanour and as such the penalty is at the judges discretion. In NSW, s 427 of the Crimes Act 1900 limits the penalty for attempts to the maximum penalty available for the commission of the complete offence. The philosophical basis of a more lenient punishment of a person who attempts (unsuccessfully) the commission of an offence is discussed in RA Duff's, "Auctions, Lotteries and the Punishment of Attempts" (1990), extracted BFW 1210. The dominant rationale for reduced punishment is not reduced culpability (since the defendant intended to complete the offence) but rather society's relief that the defendant has failed: hence as RA Duff conlcudes: "if the punishment is to communicate to him an adequate understanding of his crime, it should surely aim to communicate the appropriatenss of this relief" BFW 1212.

The common law has established that to be guilty of a criminal attempt, the defendant must do more than merely formulate the intention to commit a specific offence. The law does not punish mens rea alone. The early caselaw stressed that that intent must be accompanied by an overt act by the defendant. The first question is what is the actus reus of attempt. The courts have developed a number of tests for the actus reus of criminal attempt. It is difficult to state with precise certainty which is the present test. However all the tests are concerned with proximity: how close the defendant was to the completion of the offence.

The older cases took a very restrictive approach to the actus reus of attempts, requiring the defendant to have done the last act before completing the crime. This test became known as the last act test. Refer to Eagleton (1855), BFW 1217; BWW 506. In this case the defendant agreed to supply bread of a certain weight to the Poor Law Authority. He supplied underweight loaves and submitted an account with a view to obtaining the full amount. The fraud was discovered before he had been paid for the bread. He was charged with attempting to obtaining money by false pretences. Parke B, delivering the judgment of the Court, held that the defendant was guilty of an attempt. Refer to BWW 506. There were several 20th century decision which affirmed this approach. Button (1900), Robinson (1915), Hope and Brown (1954). These cases are outlined BWW 507-508, and you can review these case on your own.

The Tasmanian decision of Haas (1964) (extracted in Materials II) provides a neat summary of the various approaches to the actus reus for attempt, but does not attempt to rationalise the apparently conflicting dicta, concluding that it is impossible to draw any precise line between acts merely preparatory and acts which constitute an attempt. This does not help the trial judge who must direct the jury on the meaning of attempt.

The House of Lords did try to clear up some of this doctrinal uncertainty in DPP v Stonehouse [1978], BFW 1216, BWW 510. The defendant was a prominent British politician who decided to fake his own death by drowning in order to start a new life in Australia. He made financial provision for his wife (who was unaware of his plan) by naming her as beneficiary to a life insurance policy that would be paid in the event of his death. His plan was thwarted when he was recognised on his arrival in Australia. He was arrested before claims on the policies had been made. The defendant was charged with attempting to obtain property by deception. The court accepted that the statutory obtaining offence in England covered cases where the defendant used a deception to enable another person to obtain property.

The question on appeal was whether an attempt to obtain property by deception requires the deception to come to the knowledge of the intended victim, in this case the insurer. Lord Edmund-Davies reviewed the tests commonly applied, and rejected the last act test in Eagleton as inappropriate. In some cases it was too restrictive, in other cases too broad. In his view a person could have done the last act, but still not sufficiently progressed toward the commission of the crime to justify criminal liability. The liability for attempts will always turn on the nature of the full offence, the crime which the defendant intended to complete, refer to BFW 1218, BWW 512. So Lord Edmund-Davies resolves the problem by applying an amalgam of the tests, embracing the last act and substantial distance test under the umbrella of proximty.

The Australian court have similarly rejected the last act test. Refer to O'Connor v Killian (1985), BFW 1222, BWW 507, a decision of the Supreme Court of South Australia. The defendant received cheques belonging to a former occupant of the house she lived in and unsuccesfully tried to cash them. She then opened an account in the name of the former occupier and deposited the cheques. She did not return to withdraw the money because the building society would require further identification. She was charged with attempting to obtain money by false pretences. Prior J held the the defendant's actions were sufficently proximate. He held that it was not necessary that the defendant committed the last act dependent on herself to commit the offence, and further that the prosecution had proved that she had gone beyond mere preparation through her admission as to her intentions at the time at which she deposited the cheques.

Mathew Goode in his commentary on O'Connor in the Criminal Law Journal agreed with the result, but considered that the reasoning employed was open to question: (1985) 9 CrimLJ 367. In Goode's view her conviction was consistent with the Last Act Test since the defendant had initially presented the cheques to the teller and tried unsuccessfully to cash them; at this point the defendant had committed the last act dependent on herself.

There is a some doubt whether the question of proximity is a question of law or a question of fact. In Tasmania the Code specifically provides that proximity is a question of law. However, in Stonehouse, Lord Edmund Davies stated that the question whether the defendant's conduct was sufficiently proximate to amount to an attempt is a question of fact for the jury.

Another question which arises is whether withdrawal or abandonment is a defence. See Page, BFW 1220 and Langford BWW 512-514. The question arises whether liability for attempt should be excused where the defendant voluntarily desists from the criminal plan because of a genuine change of heart. In both Page and Langford the court rejected the availability of any defence of withdrawal or abandonment for criminal attempt. The offence of attempt is complete as soon as the defendant's actions are sufficiently proximate to the completion of the offence.

Legislative Reformulations of the proximity tests

In 1980 the Law Commission of England and Wales produced a report reviewing the law of criminal attempts. The Commission concluded that the common law test, the last act test, fixed the point of intervention for criminal liability too late. The Law Commission in an earlier Working Paper had provisionally favoured the adoption of a test based on a "substantial step" towards the commission of the offence. In its Final Report and the subsequent enacting legislation (Criminal Attempts Act 1981) a formulation based on "acts more than merely preparatory to the commission of the offence" was adopted. This formulation was criticised by some commentators for being imprecise: I Dennis "The Criminal Attempts Act 1981" [1982] Crim LR 5. Nonetheless "more than merely preparatory" formulations have been adopted in Victoria: s 321N.(1), BFW 1221. The Criminal Code Act 1995 (Cth) has similarly adopted this more than merely preparatory formula. Note that the issue of proximity under the Code is clearly one of fact for the jury.

The mens rea of criminal attempt was considered in Mohan [1976], a decision of the English Court of Appeal, refer to BFW 1215, BWW 501. The defendant was driving his car and signalled by a police officer to stop. The defendant drove his car at the police officer, but the officer jumped aside. The defendant was charged with attempt by wanton driving to cause bodily injury to a police officer. The trial judge directed the jury that for attempt the prosecution merely had to prove that the defendant had the requisite state of mind for the completed offence. The prosecution did not have to prove intention on the part of the defendant to cause bodily harm. The defendant was convicted and argued on appeal that this was a misdirection.

The Court of Appeal rejected this idea of parallelism for mens rea: that the mens rea of attempt is satisfied by the mens rea of the completed offence. James LJ held that in every case of attempt, irrespective of the mental state required for the completed offence, the prosecution must prove that the defendant intended to commit the offence. The court then considered the meaning of intention to commit the offence. In our early lectures, we discovered that in the criminal law "intention" has a variable meaning. In the context of murder, the English courts developed an extended meaning of intention - oblique intention where foresight of death as a high probability or a virtual certainty would suffice. However the Court of Appeal in Mohan held that for crimnal attempt, intention is defined narrowly, refer to BWW 503. The decision therefore stands as authority that neither oblique intent or recklessness will suffice for criminal attempt. This decision was followed in Australia in Evans, refer to BWW 504.

The High Court has endorsed this view that only intention will suffice for criminal attempt in Giorgianni, although it is strictly obiter, as the case concerned accessory liability, refer to BWW 583. More recently in Knight (1992) 63 A Crim R 166, the High Court affirmed this approach, BFW 1213. The case concerned a disturbance between two hostile groups in Werribee, Victoria. The hostility culminated in a riot at the local sports hall where the defendant, described as a "big bloke from Footscray", produced a rifle. The rifle discharged wounding the victim in the stomach. The defendant claimed that someone had grabbed the barrel of the rifle and that he did not intend to kill or shoot the victim. The appeal raised several issues which do not concern us. The relevant point in Knight is that the High Court affirmed that attempted murder requires proof of an intent.

The Case of Impossible Attempts

One of the most perplexing and difficult topics in this course is the law governing impossible attempts. The topic concerns the defendant who has the intention to commit the crime, but due to some factual mistake, the crime is impossible to complete. Consider the following scenarios: The person who purchases a VCR "off the back of the lorry", believing that it is stolen, in fact the VCR is not stolen. The person who picking up his own umbrella, believing that it belongs to another person. The person who put his hand in an empty pocket, believing a wallet to be there. A person who shoots a dummy believing it to be a person. Should all the individuals be guilty of attempt to commit the crime in any of these cases? These are cases of physical or factual impossibility and the difficulty for the courts is that logically, the response to this behaviour should be the same.

The starting point is Haughton v Smith [1975] AC 476, a House of Lords decision BFW 1223, BWW 516. A quantity of corned beef was stolen in Liverpool. The police intercepted the van and intended to catch the London receiver by using the van as a decoy. The problem for the police was that once the police took the stolen property into custody it ceased to be stolen within the meaning of the Theft Act. The receivers were therefore charged and convicted with attempting to handle stolen goods. The case raised the intractable problem of impossibility. Lord Hailsham approved the sixfold classification from Donnelly [1970] NZLR 980, refer to BFW 1223, BWW 517. The controversial category was the fifth category, that physical or factual impossibility would be a bar to a conviction for attempt. Lord Halisham concluded that "In the present case the series of acts would never have constituted and in fact did not constitute an actual commission of the offence because at the time of handling the goods were no longer stolen goods."

The fifth category, which bars liability for attempts in these situations, presents considerable difficulties. An example of this operating is Collins (1864) 9 Cox CC 497 supports Hailsham's conclusion. In that case a pickpocket put his hand into a pocket with the intention to steal, but the pocket was empty. The Court for Crown Cases Reserved held that he could not be guilty of attempting to steal from an empty pocket. Cockburn CJ said that "the word attempt clear conveys with it the idea that if the attempt had succeeded the offence charged would have been committed.." The decision was overruled several times in the 19th century by Brown and Ring. However, it was regarded as good law in Smith and Lord Halisham described the reasoning in Collins as "sound".

The reasoning in Smith has been described by HLA Hart as the Interruption Model of attempts. This model states that attempt liability arises because the defendant, if not interrupted, would have completed the offence. This model does not apply to cases of physical impossibility cases because the defendant is never able to complete the offence. The defendant has done all that he intends to do, and there is still no crime on the horizon. As Glanville Williams remarked "the attempt is doomed to failure quite apart from interruption". Hart proposes that liability for attempt should be based on the Intended Steps Model. This approach would result in the conviction of the defendant in the fifth category. A person would be guilty wherever they had structured their behaviour inorder to bring about the commission of the offence and the non-existence of some essential fact would not preclude his\her liability for attempt. See further HLA Hart, "The House of Lords on Attempting the Impossible"; J Temkin, "Impossible Attempts - Another View" (both articles on short loan).

The rule in Smith has been widely criticised by academics. The exact status of the decision is unclear in several Australian jurisdictions. The effect of the decision was abrogated by statute in England by the Criminal Attempts Act 1981, and similar legislation was adopted in Victoria. Section 321N(3) of the Crimes Act 1958 Vic. (as amended by the Crimes (Amendment) Act 1985 provides that "A person may be guilty of attempting to commit an offence despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible." The House of Lords initially had some difficulty in accepting the intention of Parliament in a case called Anderton v Ryan [1985]. The case concerned Mrs Ryan who had purchased a VCR believing it to be off the back of a lorry; in fact it was not stolen. She was charged and convicted with attempted handling of stolen goods. The House of Lords held that she could not be guilty of attempt in this circumstances because her conduct was "objectively innocent". This decision flatly contradicted the clear intention of Parliament.

One year later the House of Lords acknowledged its mistake in Shivpuri, BFW 1224, BWW 525. The defendant believed that he was importing into the UK heroin and cannabis. He was arrested, but a chemical analysis proved that the substance imported was dried cabbage leaves. The court accepted that it was wrong in Anderton, the notion of "objective innocence" was unworkable. This case was one of factual or physical impossibility and the defendant had been rightly convicted of attempt.

The Victorian Supreme Court in Britten v Alpogut (1987) declined to follow Smith., BFW 1229. In this case the defendant believed that he was importing cannabis which is a proscribed drug. Upon analysis the substance was discovered to be procaine which is not prohibited. The Supreme Court held that impossibility is no answer to a charge of attempt, unless it was the defendant's intent to commit an imaginary crime. In construing a federal offence the general rule is that a State Supreme Court only applies the common law of that state, and not any relevant state legislation. Murphy J held that the principle in Smith had never been part of the common law of Victoria, BFW 1229, BWW 531.

The status of Smith in NSW had been uncertain until the decision of Mai and Tran (1992), BFW 1229. CJ Hunt described the Crown's case as a "curious one". The defendant intended to smuggle a large quantity of heroin into Australia. The AFP intercepted his suitcase and discovered 6.9 kilos of heroin therein. The police substituted the blocks of heroin with blocks of plaster containing small quantities of heroin and listening devices. The defendant was arrested in possession of a plaster block which in fact contained no heroin at all. He was charged with attempt to possess heroin. Hunt CJ conceded that it was physically impossible for the defendant to complete the crime of possessing heroin. The main issue in the case was whether Smith was good law in New South Wales. Several earlier New South Wales decisions, including Gulyas (1985), had affirmed Smith. However as Hunt CJ pointed out, this dicta had been strictly obiter since the court had concluded that the failure to complete the crime was due to the inadequacy of means (category 4) rather than factual impossibility (category 5). He was influenced by several factors outlined at BFW 1230. Hunt CJ provides a summary of the law: ibid.

Classification problems: A case of impossibility or mere ineptitude

The decision in Gulyas (1985) 9 Crim LJ 368 (NSW Court of Criminal Appeal) demonstrates the lack of clarity between the categories (4 and 5) laid down in Smith. The defendant attempted to perpetrate a fraud against a lottery. They filled in the original form but removed the carbon paper. This meant that the duplicate was blank (to be filled in at a later stage when the winning numbers were published). The defendant asked for the original form to check something and retained it. In due course, the defendant claimed they had won. The original form, of course, was never found. However, the blank carbon paper was discovered and it was evident that this was a fraudulent claim. The defendant were charged with attempting to obtain money by false pretences. The question of impossibility arose because the condition of entry was that without the original form no prize money would be paid.

The NSW Court of Appeal agreed with the trial judge that this was a case of inadequate means rather than impossibility of performance. The Court held that these facts fell within to Lord Hailsham's Fourth category "where the defendant fails to complete the commission of the crime through ineptitude, inefficiency or insufficient means". Therefore the defendant will be guilty of an attempt assuming that the test for proximity is satisfied.

The Court held that inorder for an attempt not to be criminal there must be an element of unconditional impossibility. Lee J referred to the fifth category in Haughton as requiring "absolute impossibility not impossibility dependent upon conduct anticipated or otherwise". Grove J talked of "impossibility unconditional upon human intervention." This may have narrowed the scope of the fifth category to such a degree that it has no practical significance; only covering impossibility where the is no scope for human intervention, errors or frailties.

A similar case arose in South Australia in Kristos (1989) 39 A Crim R 86 (South Australia Court of Criminal Appeal). The defendant had presented a winning Lotto coupon but the receipt showed that he had not filled in that coupon when he paid for the game. The defendant was charged with attempting to obtain property by false pretences. The defence argued that there was no case to answer because his attempt to cheat was impossible. The trial judge rejected this submission. The defence submission was correctly rejected because this was not a case of impossibility in any relevant sense at all. At most it was highly unlikely that the defendant's fraudulent claim would have succeeded. The court noted that "There is a world of difference between impossibility and improbability, even great improbability" Following the earlier decision of Collingridge (1976) 16 SASR 117 the Supreme Court held that the principles in Smith were correct and binding in South Australia.

The Court approved the decision reached in Gulyas, noting that the decision was inaccordance with the Fourth category (inadequate means) in Smith. The court declined to express an opinion as to the bold approach taken in Britten v Alpogut where the Victorian Supreme court held that Smith did not declare the common law in Victoria; the only impossibility relevant is where the putative crime attempted is not in fact a criminal offence

A Criminal Process Perspective: A Case Study on Impossibility

From the theoretical perspective, there is little moral distinction between the person who intends to commit a crime and succeeds, and the person who intends to commit a crime but is frustrated because of ineptitude or physical impossibility. The problem with physical impossibility relates not to culpability, but rather with the impact it has on police and prosecutorial practice. There is a real danger that criminal attempt can be used to cure a defect in the prosecution case, or where there is inadequate proof against the suspect - a backdoor method of convicting on the evidence of mens rea alone.

There is some evidence supporting in the United Kingdom this concern that impossibility condones or even facilitates improper police conduct (particularly entrapment). The following case study is based on an article published in Justice of the Peace Vol 157, Feb 3 1990, p 67, which is a professional journal aimed at the police and magistrates. In 1989 the Chief Inspector of Merseyside Police devised a police operation to deal with the problem of car radio thefts and their resale. In the Inspector's words, the aim of the operation was to tackle "The Arthur Daley mentality about stolen car radios in that they were looked upon as nothing more than a bargain which had fell off the back of a lorry". The police were instructed to identify suspect radios, for example, by noting a top of the line radio in an old banger for example. [Note this decision would have had a disproportionate impact on policing of the West Indian Community]. The car owner was interviewed, and if the radio had been purchased in suspicious circumstances, for example from a man in the pub, the radio was removed for examination. Where the police could not prove that the radio had been stolen, the suspect was charged with attempted handling. The fact that the owner had bought an expensive radio dirt cheap in suspicious circumstances provide circumstantial evidence of knowledge that the radio is stolen. The Chief Constable said that a person who bought a radio which turned out not to be stolen, in the false belief that it was stolen, would not be charged. In jurisdictions where impossibility no longer bars a conviction, prosecutorial discretion is assumed to play a significant role. This was expressly recognised by the architect of the UK reforms, the Law Commission, in its Working Paper (1980, Law Comm 102) para extracted at BFW 1226. Although in such cases the defendant would be guilty in theory, the Commission concluded that it would be unlikely that complaint would be made or that a prosecution would ensure.

But clearly under the present law in the United Kingdom and Australia, that person is guilty of attempted handling. The police regarded the operation as a success since it led to a 22% drop in reported car thefts. The danger with the present law is that the police can use the law of attempt to cure prosecutions which would otherwise fail for lack of evidence or as a means of covering their own ineptitude as Mai perfectly illustrates. Perhaps Smith did have some value after all, as a means of controlling police behaviour during criminal investigation, in particular preventing the reliance upon proof of criminal intent alone, which in turn leads to reliance on confession evidence or other circumstantial evidence.

The trend however is set firmly against Smith. The Model Criminal Code for Australia (1992) proposed that impossibility, whether factual or legal, should no longer bar a conviction for criminal attempt, show overhead. This reform would go further than merely reversing Smith. The defendant who mistakenly believes that the conduct is unlawful, but in fact the conduct is lawful, is guilty of attempt.

The relevant section of the Code provides:

11.1