11.1 Attempt

Section 11.1(3) has two distinct effects when the defendant is charged with an attempt:

• Fault must be proved with respect to each physical element of the principal offence: Though the principal offence may dispense with fault requirements, strict and absolute liability have no application when an attempt to commit that offence is charged;
• Fault in attempts is limited to intention and knowledge: Though the principal offence requires recklessness or negligence with respect to one or more physical elements, liability for an attempt to commit the offence requires proof of intention or knowledge with respect to that element.

Each of these principles reflects the prevailing tendency of the common law.²⁷²

Provision for intention and knowledge as alternative forms of fault when attempt is charged avoids some problems which might otherwise arise under the heading of “impossibility” (for discussion of other impossibility problems, see below 11.1-E). A significant number of federal offences impose liability for conduct accompanied by knowledge of an incriminating circumstance. The Crimes Act offence of destroying evidence is typical.²⁷³ The offence is committed when a person intentionally destroys a document or any other potential piece of evidence, “knowing that…[it] is or may be required in evidence in a judicial proceeding”. Since truth and knowledge are indissolubly linked, the requirement of knowledge implies the need to prove that there was some real prospect that the thing destroyed would be required in court proceedings. However, when attempt is charged, that restriction  on liability is outflanked. So long as the defendant destroys a document, or other potential evidence, in the belief that it will be required, the defendant acts intentionally with respect to the incriminating circumstance: 5.2 Intention. Since intention can substitute for knowledge in attempt, it is no answer to the charge that the defendant’s belief may have been utterly unfounded.

In offences which impose absolute or strict liability, the prosecution is not required to prove fault with respect to some or all physical elements of the offence: Ch 2: Division 6 – Cases where fault elements are not required. The rule is different, when an attempt to commit one of these offences is charged: the prosecution must prove intention or knowledge with respect to each element of the principal offence.

Common law requires conduct proximate to the completed offence before liability is imposed for attempt. The common law requirement of proximity in attempts is the subject of continuing and unresolved contention. A variety of “tests” have been proposed by courts and commentators to determine when preparation ends and the criminal attempt begins.²⁷⁴ Chapter 2 abandons all these attempts to state a test and poses the issue in stark terms. The question is simply: Was the conduct of the defendant “more than merely preparatory”?²⁷⁵ The question requires a conclusion of fact to be drawn in the light of all the circumstances of the case. The South Australian Supreme Court decision in O’Connor v Killian²⁷⁶ anticipates the Code provision and provides an example of its application to the offence of attempt to obtain by false pretences. There is common law authority that the question whether the defendant has gone beyond mere preparation must be judged on the facts as the defendant perceived them.²⁷⁷ So, for example, a person who imports a bag of oregano in the belief that it is cannabis is  guilty of an attempt to commit the offence of importing a prohibited substance: compare “impossibility”, below 11.1-E. Though nowhere near commission of the offence in reality, the would-be smuggler has passed well beyond mere preparation in their own mistaken conception of the facts.

At common law, a person charged with an attempt cannot escape liability on the ground that the offence has been completed.²⁷⁸ So also under the Code. The rule is one of common sense. If success were an answer to a charge of attempt, a trial judge would be required to instruct a jury to acquit a defendant entirely in circumstances where they were convinced beyond reasonable doubt that the offence was either attempted or completed but uncertain which of the two conclusions was true.

Chapter 2 confirms the emergent common law consensus that a person can be convicted of attempt though completion of the offence was impossible in the circumstances.²⁷⁹ Nor is impossibility a ground for concluding that the conduct of the defendant was not sufficiently proximate to the completed offence. The rule that impossibility of success does not bar conviction for attempt implies that the proximity issue is to be determined on the defendant’s perception of the facts: 11.1-C.

As long as it can be said that the defendant is attempting an offence known to the law, Chapter 2 provides no basis for a distinction between “legal” and “factual” impossibility.²⁸⁰ Neither legal nor factual impossibility is a barrier to conviction for an attempt. That proposition should be distinguished, however, from the rule in s11.1(6) that “defences, procedures, limitations or qualifying provisions that apply to an offence apply equally to the offence of attempting to commit that offence”: discussed below, 11.1-F.

Most applications of the principle are obvious: self defence, duress and sudden or extraordinary emergency will excuse both assault and attempted assault. If Parliament chooses to impose a limitation period for prosecution of an offence, the limitation applies equally to the pendant offence of attempt. Applications of the principle cause no problem in these cases because the distinction between defences or procedural rules and the elements of an offence are obvious. Applications of the principle in cases involving “limitations” or “qualifying provisions” require more care. Take a simple example first of all. In state and territorial jurisdictions the traditional form of the prohibition against unlawful abortion takes the following form: “Whosoever, being a woman with child, unlawfully administers to herself…&c.”²⁸¹ A woman who took an abortifacient drug in the mistaken belief that she was pregnant cannot be held guilty of the offence of course: pregnancy is an essential circumstantial element of the offence.  Suppose  she is charged instead with an attempt to commit the offence. It seems highly unlikely that the common law would permit conviction of an attempt in these circumstances. Since the attempt and completed offence are equally punishable at common law,²⁸² the legislative rationale for restricting the offence to pregnant women applies with equal force to the attempt. If a provision such as s11.1(6) were to govern the interpretation of the offence it would reinforce that inference of legislative intention. The pregnancy limitation is a “limitation or qualifying provision” which governs the offence and the attempt alike. The Commonwealth Customs Act provisions on narcotic drugs contain a similar, though more contentious example. There is no doubt that a person who packs a parcel of oregano in a hollow walking stick and brings it into Australia, in the mistaken belief that it is cannabis,   is guilty of an attempt to import cannabis, a prohibited import;²⁸³ impossibility of success is no answer to a charge of attempted importation. Suppose, however, that this incompetent is charged with one of the offences of attempted possession of a prohibited drug contrary to s233B(1).²⁸⁴ In each of these possession offences, conviction of the principal offence requires proof that the drug was “imported into Australia in contravention of this Act”. That limitation or qualification on liability for the principal offence should equally apply to the attempt so as to bar the possibility of conviction. The legislative rationale for the exception is the same, whether the attempt or completed offence is in issue.

The contentious nature of the issues involved in marginal applications of  the principle in s11.1(6) are particularly apparent in the recurring problem of the receiver or fence, who accepts goods in the mistaken belief that they are stolen.²⁸⁵    Australian common law probably holds that impossibility is no barrier to conviction of the fence for attempted receiving: 11.1-E. The same conclusion follows under the Code, where s132.1 Receiving requires proof of dishonest receipt of “stolen property knowing or believing the property to be stolen. Though the principal offence requires proof that the property was stolen, it is unlikely that this requirement can be said to amount to a “limitation or qualifying provision” which applies equally to the attempt.

What then of the ubiquitous provisions which limit liability for federal offences to criminal activity involving Commonwealth property, personnel, buildings or other subjects of Commonwealth concern? There can be no liability for the completed offence, of course, unless the Commonwealth connection is proved. And clearly there is no liability for an attempt if the defendant had neither an intention to commit an offence relating to subject matter protected by federal law nor any belief on that score. Suppose, however, that a thief steals a car in the mistaken belief that it is a Commonwealth car. Or suppose an assault is made on a state or territorial police officer in the mistaken belief that the officer is a member of the Australian Federal Police. In these instances, the requirement of a Commonwealth connection is a “limitation or qualifying provision which applies to [the] offence” and prosecution for an attempt to commit one of the Code offences will fail. ²⁸⁶

The Dictionary to the Criminal Code provides a definition of these provisions. There are three kinds of special liability provision:

1. Those which impose absolute liability for one or more but not all of the physical elements of an offence; or
2. Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or
3. Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing.

Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. Section 11.1(6A) extends the effect of the special liability provisions to the attempt.

Crimes against humanity aside, federal offences are limited by the need for a connection between the offence and a subject matter of Commonwealth constitutional concern. In many instances the link will be established via physical elements of the offence. So, for example, the offence of theft is limited to property which belongs to a Commonwealth entity: s131.1 Theft. Receiving is limited in the same fashion: s132.1 Receiving. Bribery is limited to bribery of Commonwealth public officials: Part 7.6 – Bribery And Related Offences. In these examples, the circumstance which defines the offence as a subject for Commonwealth concern is, at the same time, a physical element of the offence.²⁸⁷ It follows that proof of recklessness with respect to the Commonwealth connection would be necessary, pursuant to 5.6 Offencesthatdo not specify fault elements, unless provision is made to relieve the prosecution of the burden. Since the existence of a Commonwealth connection usually has no bearing on the blameworthiness of defendant’s conduct, special liability provisions are used to avoid the necessity for proof of fault with respect to the existence of the connection.²⁸⁸ In theft, liability is absolute with respect to the requirement that the property in question belong to the Commonwealth: s131.1(3). In bribery it is unnecessary for the prosecution to prove that the defendant knew that the official was a Commonwealth official [s141.1(2)] and in receiving it is unnecessary to prove that the defendant knew or believed that the property belonged to the Commonwealth: s132.1(2A).

At common law, the penalties for attempt were not fixed. Legislation in most state and territorial jurisdictions now limits the penalty for attempt to some fraction of the penalty for the completed offence.²⁸⁹ In South Australia, for example, an attempt draws a maximum penalty of two thirds of the maximum penalty for the principal offence, in the absence of contrary provision.²⁹⁰ New South Wales, like the Commonwealth, sets the same maximum penalty for the attempt as it does for a completed offence. Though in practice an attempt usually draws a lesser sentence than a completed offence, the distinction is not always observed. In offences of fraud and trafficking in drugs, for example, there is often no difference in the degree of culpability between the completed offence and the attempt.

There is common law authority for the proposition that a person convicted of the principal offence cannot also be convicted of an attempt to commit that offence.²⁹¹ Section 11.1(5) deals with the converse situation, where the prosecution seeks a conviction for the principal offence though the offender was convicted earlier of the attempt. Prosecutorial motives for launching the second prosecution might include the discovery of new evidence or the delayed occurrence of an element of the principal offence as, for example, when the victim of an attempted murder dies as a consequence of the defendant’s attack. Whatever the motive, Chapter 2 forbids a second prosecution.

Though there is some common law support for the suggestion that liability can be imposed for an attempt to become an accomplice or attempted conspiracy,²⁹² the Code does not permit further extension of these extended forms of liability by application of the law of attempt.

269. For an instance where liability for attempt is barred, see the cybercrime provision in Chapter 10 – National Infrastructure; Part 10.7 – Computer Offences, s477.1 Unauthorised access, modification or impairment with intent to commit a serious offence. Liability for an attempt to commit this offence is barred because it is itself a preparatory crime.

270. The obvious examples are offences of causing injury or death by negligence.

271. Reference to “conduct” throughout s11.1 Attempt implies liability for omission as a consequence of the definition in 4.1 Physical elements. See, in addition, MCC – Ch 2: General Principles of Criminal Responsibility (1992) 77: “The Committee decided that it should be possible to commit an attempt by an omission…”. Instances of attempt by omission are likely to involve a principal offence which requires proof of a result. The classic example would be an attempt to murder a child by withholding food or medical treatment: Bubb (1850) 4 Cox CC 457 and B Fisse, Howard’s Criminal Law (1990) 413.

272. On fault in liability for attempts to commit offences of strict or absolute liability, see B Fisse, Howard’sCriminal Law (1990) 391-393. The second issue – can liability for an attempt be based on proof of recklessness with respect to one or more elements of the principle offence? - is contested. Fisse, op cit, 386-390, argues that recklessness should suffice for a the attempt if the principal offence requires recklessness. Caselaw does not support that position: see the High Court dicta in Georgianni (1985) 156 CLR 473 and Knight (1992) 63 A Crim R 166, 170-171 (Mason CJ, Dawson & Toohey JJ; contra Brennan & Gaudron JJ 176).

273. Crimes Act 1914 (Cth) s39.

274. S Bronitt & B McSherry, Principles of Criminal Law (2001) 437-441 provide a brief account of some of the competing alternatives. Also see B Fisse, Howard’s Criminal Law (1990) 393: “a number of judicial efforts have been made to lay down a workable test of proximity, but none of them can be regarded as successful.”

275. The test adopted follows a number of authorities and law reform bodies: English Law Commission, Criminal Law: Attempt, and Impossibility in Relation to Attempt, Report No 102 (1980) at paras 2.48-2.49 and s.1(1) of the Criminal Attempts Act (UK) 1981; Law Reform Commission of Canada, Report No. 31, Recodifying Criminal Law (1987) at 45.

276. (1984) 15 A Crim R 353.

277. Britten v Alpogut (1986) 23 A Crim R 354; discussed: Leader-Elliott, “Case & Comment: Britten v Alpogut” (1987) 11 Crim LJ 182.

278. Prior (1992) 65 A Crim R 1; B Fisse, Howard’s Criminal Law (1990) 414.

279. See Britten v Alpogut (1986) 23 A Crim R 354 (Vic); Prior (1992) 65 A Crim R 1 (NT); Mai & Tran (1992) 60 A Crim R 49 and Isaac (1996) 87 A Crim R 513, 521(NSW); English (1993) 68 A Crim R 96 (WA). South Australia, where the authority of Haughton v Smith [1975] AC 476 was accepted in Collingridge (1976) 16 SASR 117 and Kristo (1989) 39 A Crim R 86, awaits an occasion to reconsider the issue.

280. See S Bronitt & B McSherry, Principles of Criminal Law (2001) 352-363 for a recent discussion of this much discussed issue. The authors suggest that the Code provisions permit conviction for attempts to commit “imaginary crimes”, ibid 355. The criticism is, with respect, misplaced. Liabil- ity for attempt is limited to attempts to commit offences, as defined in Ch 2, Part 2.2 – The Elements of an Offence and the particular provisions which set out their elements. The offence must be one known to the law. The impossibility rule is qualified moreover by s11.1(6).

281. See, for example, s82 Crimes Act 1900 (NSW).

282. Even in jurisdictions where a distinction is drawn between punishment for the principal offence and the attempt, it would be stretching credulity to suggest that the legislature intended the limit to apply only in cases where the principal offence was charged.

283. Customs Act 1901 (Cth) s233B(1)(b). So held, Britten v Alpogut (1986) 23 A Crim R 354.

284. Ibid, ss(1)(c), (caa), (ca).

285. Debate on the question spans the 20th century and transcends localised criminal jurisprudence. See People v Jaffe (1906) 78 NE 169 (New York); Donnelly [1970] NZLR 980 (NZ); Haughton v Smith [1975] AC 476 and Anderton v Ryan [1985] 2 WLR 908(UK); English (1993) 68 A Crim R 96 (WA).

286. The case is different, however, if the subject matter of the projected offence exists. So, for example, if the offender intends to steal the Commonwealth car driven by Jones, the AFP officer who lives down the road or intends to attack Jones, a mistaken attack on the wrong person or a mistaken appropriation of the wrong car will amount to an attempt to commit a federal offence.

287. Ch 2: 4.1 Physical elements.

288. Compare Ch 4 : Division 71 – Offences against United Nations and associated personnel, which imposes strict liability with respect to the requirement that the offences be committed against UN and associated personnel.

289. S Bronitt & B McSherry, Principles of Criminal Law (2001), provide a useful comparative table.

290. Criminal Law Consolidation Act 1935 (SA) s270A(3).

291. Wesley Smith v Balzary (1977) 14 ALR 681.

292. B Fisse, Howard’s Criminal Law (1990) 412-413. See, in addition, Ransford (1874) 13 Cox CC 9 (attempted incitement)