Criminal Law Topic 9 - Inchoate Offences PDF

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Inchoate offences notes 2018...

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TOPIC 9: INCHOATE OFFENCES “INCHOATE OFFENCE’ MEANING Inchoate comes from the Latin word “inchoate” which means “to start work on” Inchoate offences are incomplete ones (i.e., substantive offence not completed and no harm done), yet offences in their own right. So, even though committing the crime fails– the inchoate crime may be fully committed.

Attempts: acts more than preparatory Conspiracy: agreement Incitement: persuade Ira Robbins: Despite the independent origins and developments of these three offences, conspiracy and incitement can be viewed as early stages of an attempt. Rationale for Criminalising Inchoate Crimes “1. Inchoate offences are the manifestation of a societal judgment that the criminal law should be permitted to strike out pre-emptively against criminal behaviour rather than stand idly by and wait for its pernicious consequences to reach fruition before acting. 2. One who intends to commit a crime is no less culpable, at least from a mental standpoint, than one who actually commits the complete offence.” Textbook p. 556 Justifications of these laws (McSherry pg 460) 1. the “harm” of inchoate offences could be viewed as broadly as the potential to cause harm. Perhaps Inchoate offences can be viewed as “risk management” rather than the prevention of harm. 2. So, Attempt but fail should mean no criminal accountability? 3. Crime prevention ATTEMPT The starting point in the modern law is that the mere intent to commit a crime, so long as it merely resides in the mind of a person, is not a crime “although it may well be sinful” (R v Worland [1964] VR 607). The question for the court is always one of gauging the extent to which the person has commenced on a criminal course and how much remains to be accomplished. Freckelton and Cockroft p. 71

 Definition of attempt (common law) Britten v Alpogut [1978] VR 929 at 938: “[A] criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he [or she] did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and not seen to be merely preparatory to it.”  The statutory law: Crimes Act 1958 (Vic.) 321M Attempt A person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. Note: There are separate MR and AR criteria that apply to establish an Attempt of an offence.  Issues in attempt cases Actus Reus The acsused must have taken steps that are immediately and not remotely connected with the commission of the relevant offence and we need to determine just how far the accused must have progressed towards completing that offence. • In page, two guys going to do a burglary. Defendant gets crowbar in window but before opening the window he has a change of heart. Court still found guilty of attempt because what the defendant did already met the elements of the offence. In Britten v Alpogut, Murphy J discussed conduct that is “sufficiently proximate” and not “merely preparatory.” As such, there is a distinction between preparing to commit a crime and attempting to commit it. Only the latter is punishable under the law. Testing for this is problematic as explained in R v Barker [1924] NZLR 865 at 874 (and cited with approval by Kaye J of the VSC): “The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance.” The actus reus for attempt at common law: R v Eagleton (1855) Dears CC 376, 15; 169 ER 766, 826 At 571: Acts remotely leading towards the commission of the offences are not to be considered as attempts to commit it; but acts immediately connected with it are… … in this case, no other act on the part of the defendant would have been required. It was the last act depending on himself towards the payment of the money, and therefore, it ought to be considered an attempt. Issue: whether the accused’s activity constituted attempt DPP v Stonehouse [1978] AC 55 Actus Reus tests for attempt under COMMON LAW DO FURTHER TEXTBOOK RESEARCH 1. The “Last Act” test (now rejected in Vic) • R v Eagleton (1855) Dears CC 376, 15; 169 ER 766 • R v Robinson [1915] 2 KB 342

R v Chellingworth [1954] QWN 35 - arson ct: held last step would be lighting the match… • R v White [1910] 2 KB 124 • Test fell into disfavour on the basis that some offences may be committed in stages of a period of time • This test requires that D must have completed the last act necessary to complete the offence and was formulated in the case of R v Eagleton. • This test has been criticised and is a difficult test to satisfy. 2. The “Unequivocality” test (limited support in Australia) • R v Barker [19240 NZLR 865 • O’Connor v Killian 38 SASR 327 • Note, this test was rejected in Nicholson (1994) 76 A Crim R 187 • 2. Unequivocality Test for AR • D’s conduct must unequivocally point towards a criminal offence, where the conduct is so manifestly wrong that the only explanation for it lies in an attempt to commit a criminal offence and there is no innocent explanation for D’s conduct: R v Barker • This test has been received scant support in Australia. • TEST: NEED conduct that unequivocally indicates that the accused intended to commit the offence (similar to substantial step test) 3. The “if not interrupted” Test (problematic) • R v Grogan (1889) 15 VLR 340 • R v Borinelli [1962] SASR 214 4. The “Substantial step” Test • DPP v Stonehouse [1978] AC 55 • Jones (1990) 91 Cr App R 351 • R v Campbell [1991] Crim LR 268 • Looks to how much progress has been made and how much remains to be done •

Actus Reus tests for attempt under STATUTE in Victoria s. 321N Conduct constituting attempt (1) A person is not guilty of attempting to commit an offence unless the conduct of the person is— (a) more than merely preparatory to the commission of the offence; and (b) immediately and not remotely connected with the commission of the offence. (2) For a person to be guilty of attempting to commit an offence, the person must— (a) intend that the offence the subject of the attempt be committed; and (b) subject to subsection (2A), intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place. (2A) For the purposes of subsection (2)(b), in the case of an attempt to commit an offence against section 38 (rape), section 39 (rape by compelling sexual penetration), section 40 (sexual assault) or section 41 (sexual assault by compelling sexual touching), instead of the element of the offence referred to in section 38(1)(c), 39(1)(c), 40(1)(d)

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*emphasis added S.321N contains both the AR elements of an Attempt in s.321N(1) and the MR elements in s.321N(2). The issue of Factual Impossibility is dealt with in s.321N(3).  is NO DEFENCE ACTUS REUS TEST IN VIC IS a statutory one • 321N Conduct constituting attempt A person is not guilty of attempting to commit an offence unless the conduct of the person is— (a) more than merely preparatory to the commission of the offence; and (b) immediately and not remotely connected with the commission of the offence. • Very similar to Eagleton minus the “last act” bit. Also similar to Stonehouse • Key thread is that the acts or omissions of the accused must have progressed to the point that the commission of the subject offence is imminent.

How certain must the offender be that the act/omission will occur? Neal v The Queen [2011] VSCA 172: Even if the criminal plan’s success is improbable, s.321N(1)(a) and (b) is satisfied so long as the accused believes there is at least some chance that the intended crime will result [40][51]. Desistance Common law – If an offender decides to not go through with the criminal offence (desists), s/he may still be liable for attempt under the law. See for example, R v Page [1933] VLR 351 Statutory Law in Vic – If the accused embarks on a course of conduct to commit an offence and voluntarily withdraws or desists before the offence is completed, the accused will be guilty of an Attempt of that offence where the accused’s conduct is more than merely preparatory and immediately and not remotely connected to the offence under s.321N(1). R v Evans (1987) 30 A Crim R 262 Knight v The Queen (1992) 175 CLR 495 “18. The appellant sought leave to appeal to the Full Court of the Supreme Court against his conviction of attempted murder on the ground that the verdict was unsafe and unsatisfactory. Upon that count, the prosecution bore the onus of proving beyond reasonable doubt that the appellant fired the shot alleged to constitute the attempt with intent to kill. This is because the intention which must accompany the inchoate crime of attempt is an intention to commit the complete offence ((1) See D.PP. v. Stonehouse (1978) AC 55, at p 68). It follows that an accused is not guilty of attempted murder unless he intends to kill ((2) See Alister v. The Queen (1984) 154 CLR 404, at pp 421-423). An intention to cause grievous bodily harm may constitute the malice aforethought required for murder where death ensues, but for there to be attempted murder there must be an intention to cause the death which is an essential element of the completed crime of murder. ”

Mens rea Whether the MR needed for the attempt is satisfied by proving that the accused acted with the same MR needed to convict Δ for the relevant (complete) offence… or something else. The mens rea for attempt at common law: At CL only a mens rea amounting to an intention to bring about the consequences of the subject criminal offence will suffice for an Attempt of an offence. R v Mohan [1976] QB 1, DPP v Stonehouse [1978]AC 55 Court holds: Intention is to be distinguished from motive. “It is equally clear that the word means what is often referred to as “specific intent” and can be defined as a ‘decision to bring about a certain consequence’ or as the ‘aim’.” Mens rea for attempt under COMMON LAW In all jurisdictions, the requisite fault level for attempt is intention at CL See, Knight v The Queen (1992) 175 CLR 495: “INTENT THAT THE SUBJECT OFFENCE BE COMMITTED” Previous case law held otherwise… DEPENDING on the crime attempted, for example: 1. Attempted Rape (re: consent): R v Evans (1987) 30 A Crim R 262 R v Khan [1990] 2 All ER 783 2. Attempted Murder Alister v The Queen (1984) 154 CLR 404 SHOULD THESE EXCEPTIONS BE SEEN AS OVERRULED BY KNIGHT? Attempted Murder • Intending to cause GBH is insufficient to amount to an Attempted Murder • The courts have held that you must intend by your conduct to kill and take the life of another for an Attempted Murder. McGhee v R (1995) 130 ALR 142; Alister v R (1983) 50 ALR 41 • An intention to cause GBH to V that results in V’s death is sufficient MR for the offence of Murder but it is not sufficient for a conviction of Attempted Murder if V doesn’t die in these circumstances. Recklessness/Negligence vs Intention • Where a crime can be committed either by intention or recklessness, such as Murder, Assault or Rape, there can only be an attempt of these offence where Δ intended to commit the subject offence both at CL and now under statutory provisions of s.321N(2). (See, Knight v R ).

If Δ is only reckless in his MR state to bring about the subject offence, then there can be no Attempt of that offence: Why? • This is because an Attempt requires that there be an intention in respect of bringing about the elements of the relevant offence and any lesser state of mind such as recklessness or negligence will not be sufficient as an attempt requires intention to commit an offence and nothing less. BUT CONSIDER THE FOLLOWING CASE…. R v Kalajdic and Italiano (2005) 157 A Crim R 300 “the word ‘intend’ in sub-section (2) embraces the concepts of deliberate design and recklessness.” •

 321N(2) (2) For a person to be guilty of attempting to commit an offence, the person must— (a) intend that the offence the subject of the attempt be committed; and (b) subject to subsection (2A), intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place. ss.321N(2)(a) and (b) merely codify the existing CL position in relation to the law of Attempts. The textbook authors argue that there is no difference between the words ‘intend’ and ‘believe’ in s321N(2)(b) and state that those words relate to prescribed consequences and the existence of facts rendering the conduct criminal respectively. Under s.321(N)(2)- a person is not guilty of attempting to commit • S.321N contains both the AR elements of an Attempt in s.321N(1) and the MR elements in s.321N(2). • The issue of Factual Impossibility is dealt with in s.321N(3).  is NO DEFENCE Summary of the AR and MR Elements MR: Generally, it is sufficient if you establish that Δ intended to commit every element (ie AR and MR) of the relevant offence for the MR of the attempted offence to be established. However, the interpretation of “intend” in 321(N)(2) by the court in R v Kalajdic and Italiano blurs this understanding… AR: Be aware there is no solidified test at CL for the AR. In Vic, the statutory test should be used. Impossibility as a defence to attempts • An attempt to commit a substantive offence may be impossible either because it is factually/physically impossible or legally impossible. • S.321N(3) provides that a person may be guilty of attempting to commit an offence despite the existence of facts of which he or she is unaware which make the commission of the offence attempted impossible. • Where there is a Factual Impossibility to commit an offence, there will be no defence under s.321N(3) to any attempted offence.

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Where there is a Legal Impossibility to commit an offence however- this will amount to a defence to Δ for any attempted offence and there will be no attempt

Legal impossibility as a defence to attempts A legal impossibility arises in two circumstances: 1. Where the accused mistakenly believes that her/his objective is criminal where in fact what he has done is not a criminal offence at all. 2. Where a person is not within the class of persons who by law are capable of committing the subject offence (e.g. underage persons). • R v Shivpuri [1987] AC 1; [1986] 2 WLR 988 Factual Impossibility as a defence to attempts • A factual impossibility occurs where Δ’s intended objective would have amounted to an offence on the facts as he believed them to be but Δ failed to complete the crime due to facts unknown to him which may make the completion of the offence impossible. • Factual Impossibility will not amount to a defence for any Attempt as we just saw in R v Shivpuri and as codified in s. 321N(3). • R v Irwin (2006) 94 SASR 480; [2006] SASC 90  Example Question Fact pattern: • A and B arrive in Australia and approach customs each carrying tablets in their carry on bags. • A believes his tablets are panadol headache tablets and thinks it’s illegal to be in possession of panadol tablets. • B believes her tablets are speed tablets (but are in fact panadol headache tablets) and knows it is illegal to be in possession of speed tablets. • At law, it is an offence to be in possession of a prohibited substance. A prohibited substance includes speed. Panadol is not a prohibited substance. Question: Has anyone committed the crime of attempt? Answer: • BOTH A AND B HAVE INTENDED TO COMMIT AN OFFENCE OF BEING IN POSSESSION OF A PROHIBITED SUBSTANCE. SO A AND B HAVE COMMITTED THE SAME CONDUCT BUT ONLY B COMMITS AN OFFENCE. WHY? • A intends to commit an offence that is legally impossible to commit (as panadol is not a prohibited substance). • B intends to commit an offence which is unlawful and she is simply mistaken as to facts (that he has panadol in her possession rather than speed) and factual impossibility is no defence to an attempted offence. • B has intended to commit an offence of possessing a prohibited substance (ie speed) but was mistaken as to facts (and not law) that her tablets were speed when they were in fact panadol. • A mistake of fact (ie factual impossibility) is no defence to an attempt of an offence under s.321N(3)

INCITEMENT WHAT IS INCITEMENT?? Eg. Stope incitement to violence through social media.  Statutory Law: 321G Incitement (1) Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by— (a) the person incited; (b) the inciter; or (c) both the inciter and the person incited— if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement. (2) For a person to be guilty under subsection (1) of incitement the person— (a) must intend that the offence the subject of the incitement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under subsection (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible. Interestingly, you can incite someone to commit a summary or an indicatable offence. Regardless, the incitement will be an indictable offence.  Incitement in Vic AR element • 2A(1) CA defines incite to include: “command, request, propose, advise, encourage or authorize” • The level of encouragement or persuasion necessary to satisfy this element need only be minor. • It must be communicated to the person (see, R v Krause (1902) 66 JP 1902). • However, it does not need to be directed to one specific person but can be communicated to the world at large • Statute in Vic requires some form of action. • AR can be positive or negative MR Element • At CL the rule is not set in stone, however it seems as though the fault standard requires an intention that the ultimate offence will be committed. • 321(G)(2) requires the person “must intend…” Statutory Law: 321H Incitement to commit offences outside Victoria The expression the commission of an offence in section 321G(1) extends to the commission of an offence against a law in force only in a place outside Victoria if, but only if— (a) the necessary elements of the offence consist of or include elements which, if present or occurring in Victoria, would constitute an offence against a law in force in Victoria; and (b) the person inciting is in Victoria at the time of the inciting.

Statutory Law: 321F Abolition of certain offences of conspiracy at common law (1) The offence of conspiracy at common law is hereby abolished. (2) Nothing in subsection (1) shall affect the offence of conspiracy at common law so far as it relates to conspiracy to cheat and defraud and conspiracy to defraud. (3) Any offence at common law of incitement to commit the offence of conspiracy or attempt to commit the offence of conspiracy (whether the offence of conspiracy incited or attempted would be an offence at common law or under section 321 or any other enactment) is hereby abolished. (4) An indictment charging an offence of conspiracy to cheat and defraud or conspiracy to defraud must not be filed without the approval of the Director of Public Prosecutions or of a person authorized by the Director of Public Prosecutions to give approval for the purposes of this subsection. Statutory Law: 321 Conspiracy to commit an offence (1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence. (2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement— (a) must intend that the offence the subject of the agreement be...