New Zealand Law/Criminal/Attempt

Commentary

Tests

1. Last Act/Eagleton test - Defendant has done everything necessary for him/Last act depending on the defendant
2. Stephens/Series of acts test - A series of acts if uninterrupted would lead to offence
3. Rubicon test - An act indicates a fixed, irrevocable intention to go on to commit the offence unless prevented
4. Commencement of execution test - Where the defendant begins to put intention into execution; requires act indicating defendant had begun to do the thing planned
5. Equivocality test - Defendant’s actions show intention.
6. Dangerous Proximity test - Defendant is dangerously close to achieving his objects

Impossibility

R v Donnelly

Six ways in which a crime is not committed:
(i) offender changes mind before overt act
(ii) offender changes mind after overt act
(iii) offence prevented by outside force
(iv) inefficiency, ineptitude, insufficient means
(v) physical impossiblility – what is proposed is physically impossible
(vi) legal impossibility – what is proposed does not amount to a crime

Legal impossibility

Where acts, even if completed, would not amount to a crime.

Factual impossibility

Where circumstances prevent consummation of the intended crime

Cases

R v Murphy

• Facts

Case of attempted murder. At first instance, judge direction’s suggested reckless sufficient.

• Held (Court of Appeal)

Only actual intent to kill will suffice as the mens rea for attempted murder.

Police v Wylie

• Facts

Wylie came to a house to by drugs. However, the police had just raided the house and the person he was attempting to buy from was a policeman. Wylie had the money on him. The parties discussed the drugs. Wylie was just about to view the product, but the terms of the purchase hadn't been agreed, when he was placed under arrest.

• Held, CA

A contractual analysis of the transaction is inappropriate.

The correct questions to ask are: (1) Does evidence establish conduct? (2) Is conduct sufficient to amt to attempt?

The sum of the defendant’s conduct pointed to intention to buy, therefore, attempt.

R v Wilcox

• Facts

Wilcox and his co-conspirators intended to rob a post office. The police, who had been tipped off, intervened 1 km away. The defendant claimed that he had changed his mind on route and didn't intended to go ahead with the robbery.

• Held, CA

Do the acts amt to more than mere preparation? Are they immediately or proximately connected?

The defendant was no more than getting into himself into position to launch attempt.

The result might be different if D was in sight of bank.

The purchase of equipment mere preparation.

The distinction between 'preparation for' the crime and 'in the course of' (=attempt). Once something has moved past the final point of preparation/is no longer reversible, strong implication. In this case, lack of proximity to scene significant. Proximity usually an issue but not entirely definitive.

Note continuance issue: preparation involves independent acts, an attempt is the beginning of that particular flow of movements of sequence that results in the ultimate aim.

Police v Jay

• Facts

J received a bag of hedge clippings that he thought was pot.

• Held

The commission of the offence of receiving cannabis was not legally impossible, but only factually impossible. J was guilty of attempting to receive cannabis.

Note: I have changed this because it was previously completely incorrect. It previously said: "The principal couldn’t be convicted because of statutory bar, therefore, it was not legally possible for J to receive pot therefore no attempt due to factual impossibility." Beware of other entries, therefore!

Drewery v Police

• Facts

Defendant was hired to burn a car so the owner could file a false insurance claim. Defendant did burn out car but owner hadn't yet made the claim. Defendant was charged with being an accessory to an attempt.

• Held

1. Court should adopt common sense approach.

2. If the evidence of intent is strong, proximity or immediacy need not be as great.

3. Owner had taken real and practical step towards obtaining money and defendant had carried out last act that he was to perform.

R v Sew Hoy

• Facts

Brothers declared men’s clothes as women’s because the customs duty was cheaper.

Problem was that although they tried to convince customs using false documentss, customs had already inspected the goods and categorised them as men's clothes, so the attempted deception couldn't work.

• Held

The crime was not impossible – it simply failed due to inappropriate means.