Attempt Lecture Class NOTE PDF

Preview

Summary

1 ST LECTURETopic: Attempt/ Inchoate crimes/ preliminary offences/ pre offences- Why called preliminary offences? -the offence itself is committed prior to the completion of the actual crime. - No definition of attempt in Penal Code. - Act done with intention to commit the crime. Nevertheless, becau...

Description

1ST LECTURE Topic: Attempt/ Inchoate crimes/ preliminary offences/ pre offences -

Why called preliminary offences? -the offence itself is committed prior to the completion of the actual crime.

-

No definition of attempt in Penal Code.

-

Act done with intention to commit the crime. Nevertheless, because the act is beyond the control failed to complete the crime.

-

Sec 1 (1) of Criminal Attempts Act (Law in England) “if, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence”

-

In other words, by virtue of above section, to constitute an attempt, the accused person must have done an act which is beyond preparation towards the commission of an offence. The requirement is the act, when he was doing this act towards the commission of the crime, he must hv the intention to commit the offence.

-

So based on this definition, we can include there are few characteristics of attempt: 1) Act/ series of act which is beyond preparatory 2) Done with intent to commit an offence 3) Nevertheless, due to factors beyond the accused person’s control, he failed to complete the offence.

-

Attempt is the third stage of crime: * Intention -> Preparation -> Attempt -> Complete crime

-

Majority of legal jurist agreed tht intention and preparation are not an offence. Same goes to mere preparation to commit the offence. But majority agreed tht attempting to commit an offence and commission of a complete crime, can be considered as an offence.

-

As usual for every general principal (intention and preparation are not offences), there must be exception. What are the exception? Let’s see the penal code! 

S. 121 A



S. 121 B

-

Opinion of legal jurist as far as the offence of attempt is concerned; 

Majority: attempt is an offence.



Rationale: when a person attempted to commit an offence, he had both the element of mens rea and actus reus. He had a guilty mind and he had actually done some acts towards the commission of the crime and because of that, he should be punish for having that mens rea and actus reus. Punishment of attempt: much lesser than the full offence.



As preventive measure. If he attempt to do an offence and he did not held liable for that, there will be the possibility probability that the person will try it again in the future.



Minority: attempt should not be made as an offence.



Rationale: the person has already failed. Unfair to convict a person for failing to commit an offence.



Sometimes in some cases of attempt, there is no harm caused from the act of the accused.

-

Malaysian law: attempt is an offence.

Type of attempt in Penal Code -

Why is it important to identify the type? 

-> help identify the relevant section -> identify the element of actus reus and mens rea -> able to decide the liability of the accused person.

-

Types: 1) Specific attempt 

There is specific provision dealing with the tht particular attempt



S 307: attempt to murder



S 308: attempt to culpable homicide



S 393: attempt to commit robbery



S 309: attempt to suicide. Very controversial provision. In India and Singapore they hv already decriminalize this because this is unconstitutional because attempt must be an act done towards commission of a crime but suicide is not an offence. There’s

no provision pertaining suicide in penal code. Then how come attempt to suicide is an offence? 

Presumption of the law when a person attempting to commit suicide is the person suffers from unsoundness of mind unless proven otherwise by the pp.



In some cases, the words attempt takda mention, tapi kita boleh tengok dkt provision tu. Ex: extortion. U will not find the words attempt. “Putting a person in fear…” shows tht it is attempt.

2) An act that includes also commission of attempt 

Attempt always be treated as less severe compared to the commission of the full crime. Nevertheless for certain offences, because the offence committed is so severe to the extent that the commission of the full offence include also the commission of attempt.



Consequently, the punishment for the full offence plus the punishment for attempt to commit the offence can be found in the same section. Darjah dia sama berjaya tak berjaya sama ja punishment dia.



S 121:



S 393: attempt to commit robbery.

3) General attempt 

In the event that there is no specific provision provided, so we have to use the general provision i.e. under s 511.



Historically, the reason why attempt in s. 511, is because it was the last offence included. Originally, the drafter of the Penal Code only intended for there to be specific attempt. But after quite sometimes they realize that people also attempt to commit other crime but legal action cannot be taken because there is no legal provision for the attempt of such crime.



S 511: just mention attempt.



Remember: if there is specific provision, then you must use the specific provision. In the event that there is no specific provision then only you used s 511.



But the problem with section 511 is, it is a general provision. It just mention about ATTEMPT. When you go to the court and charge an accused person, your charge must be very specific and clear. Hence consequently, you cannot charge an accused person by using section 511 per se. You have to read it with other section so that your charge will be very clear.



QUESTION: So the section that we used is just the one that prescribe the penalty or just the general provision?



-When you want to charge, you must always have to use section that provide the punishment.



Ex: ATTEMPT + THEFT -S 379 + S 511 -S 378 + S 511



Ex: the accused person attempted to commit rape, hence you have to read s 511 with section for rape. So its going to be like this: -S 511 + S 376 (Because the punishment for rape is under s 376) -However, in order to determine whether the accused person is liable for attempt to commit rape or not, then the provision can be found in s 511 + s 375. Usually in the charge, you put in the specific provision first. – S 376 + S 511 / S 375 + S 511. - According to madam, we can just put s 375 read with s 511 (means tak specific). Kalau in case tak ingat the provision, we can just put “the issue in this case is attempt to commit rape”. But madam lagi prefer kalau specific. U cannot simply put “whether or not he can be liable for attempt”. Sbb kalau kita letak tu as issue, issue tu akan jadi too vague. U need to specify.

Element of Attempt Actus reus -

The person must hv done an act beyond preparation towards the commission of the offence.

-

Like s 307- Very vague description. Court will take into consideration of the definition of attempt in criminal attempt act. (more than mere preparation)

-

Eventho the provision say that the accused person must done any act. But, in practice, in order to prove the liability of the accused person, the act should not be any act, it must be an act tht beyond preparation.

-

Few things can be find in S 511:



Pertaining to the application -Applicable not only to any offences punishable by the code, but it is also applicable to any offences prescribe by any other written law. You can only use s 511 with any other offences if punishment is imprisonment or fine or with combination of both. So, if the punishment is death penalty, it cannot be used. You cannot read the provision with s 511. -Consequently, it is very wrong to read s 302 + s 511 sbb punishmentnye ialah death penalty.



Actus Reus of attempt. -In s 511, it stated that attempt to cause such an offence to be committed and in such attempt does any act towards the commission of the crime. -So what the provision trying to tell u is that: The accused person must hv done an act towards the commission of the crime.



Punishment: -the punishment impose shall not exceed one half of the longest term provided for the full offence. -and illustration thou. Kena tengok jugak sbb illustration tu ialah pertaining to impossible attempt.



Case: Muna bt Ali S 312 + 511 Actus reus of Muna: she must hv done any act towards causing miscarriage to a woman with child. Dissenting judgment held: muna not liable for attempt to cause miscarriage because she only fulfilled part of the requirement i.e. she was trying to cause miscarriage but this element of woman with child was not fulfilled. Majority held liable sbb the judges refer to illustration in s 511 (b). From this illustration, it shows tht eventho that you are attempting the impossible, you can still

be liable for an attempt to pick pocket/ commit theft. Hence in that case, majority of the judges said an empty pocket is similar to empty womb so when she was trying to get rid of the baby from the womb, it means that she was attempting the impossible. Why? Because there was no baby in the womb.

-

How to determine beyond preparation? 

Nor prescribe by provision hence we have to refer to decided cases. Usually court will apply various test. Different test carry out different answer. Madam suggest to use odd number test: 3/5. Reason why is because u can choose majority. 2 against 1 in case you include 3 test.



How to choose? Depend on several factors: -legal position -what was the last act done by the accused -why the accused failed? He change his mind? He attempting the impossible?

-

Applicable test:

Proximity test - The last act done by the accused person must be proximate with the completion of the crime. Then the act of the accused person will be considered as an attempt. -Ex: when the accused person want to kill someone. He did buy gun, train to shot and tht one night he entered into the victim’s bed and pointing the gun to the victim. This can be considered as an attempt if we used the proximity test.

Last act test -the most difficult test but if u can fulfill the test, u will hv a very strong case. Usually the last act test is best to be apply if the last act done by the accused person is the last act that is required for him to complete the offence. -refers to the last act done by the accused must be the last penultimate act required before he can complete the offence.

-Ex: causing death by shooting somebody. The last required act for this is u must hv pull the trigger and shot the victim. If the last act done by the accused person is pointing the gun, then if u use this test, the accused person is not liable because it is not the last penultimate act required to complete the offence. How did the court apply the last act test? 

By looking at the last act of the accused and see whether this last act is the last act required for him to complete the offence.



Ex: causing death by shooting somebody. The last required act for this is u must hv pull the trigger and shot the victim. Whether u miss or not, it is immaterial but the fact remained, u have to pull the trigger (depict beyond the stage of preparation)



Commit rape: the crime is complete as soon as u complete the sexual intercourse and what actually sexual intercourse is penetration. Hence, anything immediately before penetration will be considered as the last penultimate act.



Case: Abhayanand Mishra v State of Bihar (1961) SC 1698. -he was charged with an attempt to cheat. He sent in application to sit for a test for him to continue his master by using forged certificate. So the uni is already accepted the application but nevertheless before he was able to sit for the test, then the uni discovered about the forged document. Consequently, abhayanand Mishra was charged with an attempt to commit cheating. -So, in this case, when you take into consideration on whether or not he can be liable for an attempt to commit cheating so the court look at his last act. His last act, if u wanna charge him with cheating- is sending the application. He sends and the uni had already received the application. But the only thing is, the main reason why he failed to cheat is because the uni discover his act prior to the test. if he successfully seats for the test, it means that he already cheated the uni.

So, his act of sending the

application is considered as the last act required.



Case: Arjan Singh v PP (1949) MLJ 73 -Arjan was charged for attempt to commit extortion. Few extortionate letters were found in his house and tht was the reason of why he was charged for an attempt of committing extortion.

-So, the issue now is whether the act of writing the letters, can be considered as an act tht is beyond preparation? -Alright madam mentioned, putting a person in fear of any injury under s 385 is equal to attempt to commit extortion. However, in this case, arjan is yet to post the letter. So, he cannot be charged for putting a person in fear of any injury in order to commit extortion under s 385. So basically, what happened is he was charged for an attempt to commit extortion by s 383 read with s 511. -so, it means tht the actus reus is arjan must had done any act to put any person in fear of any injury. And the laws say, this act must bean act tht is beyond preparation. -Let’s say if u want to apply the last act test, what would be the last act required if he is to be committing extortion? – the last act will be; he must has posted the blackmail letter. But in this case, Arjan is yet to post the letter. Hence if u apply the last act test in this case, it will be more probably tht u will not be successful. -so, what u have to do is u hv to backward and trace the series of action. Oki u said tht the last act required is him posting the letter. -The series of action: 1. Identify the victim 2. Writing the letter and kept at home...