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6.4 - Attempt (Victoria)

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Overview

  1. Attempting to commit an indictable offence is an indictable offence (Crimes Act 1958 s321M).[1]
  2. Attempt is a form of inchoate liability, like conspiracy and incitement (see, e.g., Board of Trade v Owen [1957] AC 602).
  3. Attempting to commit an indictable offence has 2 elements:
    1. The accused intended to commit an indictable offence; and
    2. The accused attempted to commit that offence.

    Each of these elements is addressed in turn below.

    Intention to Commit an Indictable Offence

  4. The first element requires the accused to have intended to commit an indictable offence ("the principal offence") (Crimes Act 1958 s321N; Britten v Alpogut [1987] VR 929; DPP v Stonehouse [1978] AC 55).
  5. The accused must have intended to commit the principal offence and not some other offence (Knight v R (1992) 175 CLR 495; McGhee v R (1995) 183 CLR 82; Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719).
  6. This requires the accused to have intended to perform the physical elements of the principal offence (McGhee v R (1995) 183 CLR 82).
  7. Where the principal offence requires the accused to have caused a particular result (e.g., the victim’s death), the prosecution must prove that the accused intended to bring about that result. This is required even if the intention to bring about that result is not necessary to convict the accused of the principal offence[2] (Knight v R (1992) 175 CLR 495; McGhee v R (1995) 183 CLR 82; Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719).
  8. Intention requires more than an expectation that a particular result is likely. For this element to be met, the accused must have acted with the purpose of bringing about the attempted result (Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719).
  9. Recklessness and negligence are not sufficient states of mind for the crime of attempt (Giorgianni v R (1985) 156 CLR 473; Alister & Ors v R (1984) 154 CLR 404).

    Intention or Belief in Facts and Circumstances

  10. The accused must also intend or believe that any fact or circumstance that is an element of the offence will exist at the time the offence is expected to take place (Crimes Act 1958 s321N).
  11. This requirement concerns facts or circumstances that are themselves elements of the principal offence. It does not require the accused to have intended or believed that the specific facts or circumstances which are required, in a particular case, to prove the elements of the principal offence, would be in existence at the relevant time (R v Wilson [2004] VSCA 120).

    Act of Attempt

  12. The second element requires the accused to have attempted to commit the principal offence. For this element to be satisfied, the accused’s conduct must have been:

    (a) More than merely preparatory to the commission of the offence; and

    (b) Immediately and not remotely connected with the commission of the offence (Crimes Act 1958 s321N(1)).

  13. While various tests have been developed to assist in the interpretation of this element (see, e.g., R v Barker (1924) NZGLR 393; R v De Silva [2007] QCA 301; R v Haas [1964] Tas SR 1; R v Nicholson (1994) 14 Tas R 351), no definitive test beyond the words of the statute has been endorsed in Victoria.
  14. The dividing line between mere preparation and completed attempt is thus not the subject of clear guidance, and every case will depend on its facts (Partington v Williams (1975) 62 Cr App R 220; R v Williams; Ex parte the Minister for Justice and Attorney-General [1965] Qd SR 86; Nicholson v R (1994) 14 Tas R 351).
  15. At a general level, an attempt is sometimes described as the beginning of the commission of the crime (R v De Silva [2007] QCA 301).
  16. The point at which the accused moves beyond mere preparation, and starts the commission of the crime, is generally indeterminate. Two tests that have been developed to try to help determine when this may happen are:
  17. It has been held that while the unequivocal act test can be a useful guide for determining whether the accused’s conduct has moved beyond mere preparation, it is not a prescriptive rule (R v Nicholson (1994) 14 Tas R 351).

    Defences to Attempt

  18. The prosecution must disprove any defences that are raised on the evidence (Fingleton v R (2005) 227 CLR 166; Zecevic v DPP (1987) 162 CLR 645; Pemble v R (1971) 124 CLR 107).
  19. While provocation may be a partial defence to murder,[3] it is not a defence to attempted murder (McGhee v R (1995) 183 CLR 82).

    Attempt and Impossibility

  20. The offence of attempt is not limited to conduct that, if it had not been interrupted, would have resulted in the commission of the crime (Britten v Alpogut [1987] VR 929).
  21. For example, a person may be convicted of attempting to commit an offence even if facts existed which made the commission of the principal offence impossible (Crimes Act 1958 s321N; Britten v Alpogut [1987] VR 929; R v Cogley [1989] VR 799).
  22. However, an attempt is not committed if the accused erroneously believed s/he was committing a crime. The crime attempted must have been a real indictable offence, not an imagined crime (Britten v Alpogut [1987] VR 929).

    Attempt and Inchoate liability

  23. The law recognises that a person cannot attempt to conspire or attempt to be a secondary party to an offence (whether under the principles of statutory complicity or common law complicity) (Franze v R (2014) 46 VR 856).
  24. Conversely, it is possible for a person to be a secondary party to an attempted offence. This occurs, for example, when the person enters into an agreement to complete an offence and that agreement only produces an attempt at the contemplated offence. The distinction lies between a joint attempt, which is legally possible, and an attempt to agree, which is not (Franze v R (2014) 46 VR 856).

    Notes

[1] The common law offence of attempt has been abolished (Crimes Act 1958 s321S).

[2] For example, in a murder case, the prosecution does not need to prove that the accused intended the victim to die. It is sufficient to prove that the accused intended for him/her to be really seriously injured (but s/he in fact died). However, in an attempted murder case, the prosecution must prove that the accused intended the victim to die. If s/he only intended the victim to suffer really serious injury, then s/he should instead be convicted of attempting to intentionally cause serious injury (see, e.g., Knight v R (1992) 175 CLR 495).

[3] Provided the offence was committed prior to 23 November 2005: see Provocation.

Last updated: 2 March 2015

In This Section

6.4.1 - Charge: Attempt (Victoria)

6.4.2 - Charge: Attempted rape (Victoria)

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings