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When directing a jury about attempt, adapt the relevant offence direction from Part 7: Victorian Offences and add the following instruction as part of the relevant conduct element.
The law says that for a person to be guilty of attempting to commit a crime, you must be satisfied that NOA did something that was more than mere preparation for the commission of that offence, but was immediately and not remotely connected with its commission.
When a person commits an offence, s/he will often perform various acts leading up to its commission. For example, s/he may make the initial decision to commit the offence, and may plan how s/he will carry it out. In some cases s/he may purchase the necessary tools or weapons.
It for you to determine, using your common sense, whether NOA’s conduct moved beyond merely preparing to commit the offence.
The prosecution argued that this element has been met in this case. [Describe relevant prosecution evidence and/or arguments.] The defence denied this, arguing that [describe relevant defence evidence and/or arguments].
[If the accused could not have completed the offence for any reason, add the following shaded section.]
In this case you have heard evidence that NOA could not have committed NOO because [insert reason for the impossibility of the completion of the offence, e.g. “the gun was not loaded”]. This fact is not relevant to your determination.
The law does not excuse a person who attempts to commit an offence, but fails due to incompetence or because of factors outside his/her knowledge or control. This means that, as long as the two elements of this offence are satisfied, the accused will be guilty of attempted NOO, even if s/he was attempting to do something that was impossible.
Last updated: 22 September 2012