Criminal Law Semester 2 Notes

Week 1 ATTEMPTS

A person who does not fulfil an intention to commit any offence, under certain circumstances, will still be charged with an attempt to commit the offence.

The scheme of the code in relation to attempts is to establish a general attempt offence, and to supplement that with some specific attempt offence.

-Sec535 of the code makes it an offence to attempt to commit an indictable offence, punishment for which is determined under sec536, 537, 538. In addition to these general provisions, there are also a number of specific provision (eg s306 attempted murder). Other statutes may also make provision for attempts, eg, DMA;

-Sec4 of the code defines attempts. There are four elements:

-Intention to commit offence;

-Begins to execute intention by means adapted to its fulfillment;

-Manifests intention by overt act;

-Does not fulfil intention so as to commit the offence (unnecessary to prove does not fulfil intention).

-The onus is on the Crown for the first three elements - note it is not necessary to prove that the offence was not committed; intention to commit an offence is essential, even where the offence itself does not include an element of intent (eg rape). However, proof of intention alone is not sufficient to prove attempt. The second element of an attempt is that the accused must begin to execute the intention by ‘means adapted to its fulfillment’.

 ELEMENT 1: Intention to commit offence (offence see sec2 ‘punishable act or omission); the offence that was attempted doe not have to have a specific intent element;

 ELEMENT 2: accused must begin to execute the intention by ‘means adapted to its fulfillment’. Must get past preparation – at what point does mere preparation end and the conduct mature into an attempt? Various approaches have been suggested – one is the last act test, which requires consideration of whether the accused has done the last act in his/her power towards committing the offence (Eagleton). This has been rejected on the basis that in many cases it leaves little practical scope for the law of attempt because the last act may result in the commission of the offence itself (Williams, Chellingworth, Edwards). Eg, on strict application there would be no conviction of attempted murder, by shooting, unless the trigger was pulled (White). Another approach was to require that the act of the accused form part of a series of acts which would constitute its actual ommission if not interrupted (AG Reference no1). This test has also been criticised because it falls short of defining the exact point the series of acts can be said to begin: Campbell. In Williams, another approach was adopted – the unequivocally test, whereby the physical act necessary to constitute an attempt is regarded as complete if the accused does an act which is a step towards the commission of the specific crime and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime (see also Nicholson, Caitlin, White).

See Williams where it says that it is unlikely that a definite test will ever be adopted because then people could work out how to escape their act being an offence and thereby get away with crimes.

So there is no single test, and it is thus a question of fact as to whether the conduct of the accused is sufficiently proximate to the commission of the offence.

(proximity test)

 ELEMENT 3:accused must manifest his/her intention by some overt act, that is, an act capable of being observed by someone else – mere intention then, is insufficient to amount to an attempt.

IMPOSSIBILITY

The definition of attempt in sec4 contains four provisos – it is immaterial, except for the purposes of punishment:

-whether the offender does all that is necessary for completing the commission of the offence;

-fulfilment is prevented by circumstances independent of will;

-the offender desists of their own motion;

-impossibility.

It is immaterial that by reason of circumstances not known to the accused it is impossible to commit the offence – this provision served to make the accused responsible for an attempt where he/she failed to complete it because of ineptitiude, inefficiency or the adoption of insufficient means – for example:

-the pick-pocket who dips into an empty pocket;

-the murderer who uses a non-lethal dose of poison (Collingridge);

-the burglar who employs an insufficiently strong jemmy;

-the thief who enters a room to steal a particular diamond that is not there because the owner has removed it (White);

-the accused who attempts to receive stolen goods which, it turns out, are not stolen (Shivpuri);

-the accused who attempts to import a prohibited substance where, unbeknowns to him, the substance is not prohibited (Mai and Tran);

In these situations, the intended crime was not committed because of fatual impossibility due to circumstances not known to the accused – nevertheless, he will be guilty of an attempt provided the offence attempted was a recognised offence, the proximity test is satisfied, and there was an intention to do it (Lee; Britten v Alpogut);

 ‘means adapted’: the accused must have means adapted to the fulfilling of his / her intention – this is debated – but it is safe to assume it means: it is sufficient for the accused to have begun to put his/her intention into execution by doing an act that is more than merely preparatory to the commission of the offence.

NOTE sec 583 of the code makes an attempt an alternative verdict to the principle offence (eg makes attempted murder an alternative verdict to murder).

DOUBLE JEOPARDY

The code makes provision for special pleas in the event that persons are charged with an offence for which they have already been tried and acquitted/convicted, or punished (double jeopardy and double punishment).

The burden to establish either plea rests with the accused on a balance of probabilities. These special pleas are conceptually difficult. Their purpose is to ensure fairness by preventing a person being placed in jeopardy more than once or being punished more than once for an act or omission.

Double Jeopardy: S17 Code:

‘it is a defence to a charge of any offence that the accused person has already been tried, and convicted or acquitted upon an indictment …etc’

If any of the four rules in sec17 are available, then it is a defence to any offence: O’Halloran v Byrne.

former conviction: autrefois acquit;

former acquittal: autrefois convict

Note – it does not afford protection following the dismissal of a complaint in summary proceedings.

Note – s17 also provides a defence to a charge of an offence where the accused could have been convicted of that offence, as an alternative, on an earlier occasion. In that way, the section operates in conjunction with those provisions of the code which enable a person to be convicted, in the alternative, of an offence other than that which is named in the indictment – those provisions are s575-589. So, if a person could have been convicted of manslaughter at the time of the trial as an alternative to murder, then this provides a defence if they try to convict him of manslaughter later.

An illustration of the operation of s17:

Person charged with murder and manslaughter, and is either acquitted or convicted; s17 provides a complete defence to a subsequent charge of murder arising out of the same set of facts; also provides a defence if the accused is subsequently charged with manslaughter – this is because the accused, at first trial, was in jeopardy for manslaughter as well as murder because it is an alternative verdict during the first trial (s576). Thus at the subsequent trial for manslaughter, the accused is in jeopardy for the second time for that crime and s17 may be raised y the accused. The obverse is also covered by the provision – eg, say the accused were charged with manslaughter at the first trial and either acquitted or convicted – if he is later charged with murder for a second trial, he is again in jeopardy for manslaughter because manslaughter is an alterntive verdict for murder at the second trial (s576).

Raising s17

The accused who wishes to raise the plea under s17 will do so by (instead of pleading not guilty or guilty) stating that he/she has been lawfully convicted or acquitted of the offence for which he/she is in jeopardy on that second occasion, and in doing so, it is sufficient for the offence to be referred to in terms by which it is commonly known (see ss598(3)-(5), 602) – because it is a defence, the onus is on the accused – must be discharged on the balance of probabilities (Coughlan v Young).

Successfully Raising s17

To successfully raise s17, the earlier proceedings must have reached finality in the sense that the accused was convicted or acquitted. Where in the first trila there was a nolle prosequi, this is not enough, or if the jury failed to find a verdict, this is not enough. Also where a new trial is ordered by an appeal court after quashing a conviction, the plea will not succeed (Nicholas).

Sec17 is not limited to indictable offences, and potentially will have application in any Court for any type of offence – in practice, it is most likely to arise for an indictable offence.

Note – one limitation – it is a defence if you are tried twice for an injury to the same person, but you can still be tried at a later date for injury to a second person arising out of the same incident.

4 rules for double jeopardy:

  1. if you were tried and convicted upon an indictment in 1997 – what were the alternative verdicts open on this indictment? You are then charged with an offence in 1999 - Was the 1999 charge amongst them? Raise the defence under rule 1 because might have been convicted of it in 1997 if it was an alternative verdict.
  2. If in the past trial in 1997 you were tried and acquitted upon an indictment, look at alternative verdicts ; in 1999 present trial, if you are charged with an offence, if it was an alternative in the 1997 trial, this will be a complete offence;
  3. If you had already been acquitted on indictment of an offence of which might be convicted on the present indictment – raise this defence if you are now charged for an offence which was an alternative verdict on the first trial;
  4. If you had already been convicted of an offence of which might be convicted on the present indictment or complaint – look at previous alternatives and if so, use this defence.

5th rule – additional rule: when summary offences are dismissed:

- s700 – may issue a certificate of dismissal which is a bar to further prosecution for the same cause; only available after hearing on the merits – Hay ex partePatane – ie, after trial and the matter being thoroughly gone into; applies to both simple offences and indictable offences being dealt with summarily.

How do you find the Alternative Verdicts?

2 sources:

  1. alternatives actually joined on the indictment (s567 & 568 code);
  2. alternatives available in Chapter 61 of the Code – eg, s575 circumstances of aggravation; s317 doing GBH with intent;s576 murder & mansalughter (note extends in the case of motor vehicles to dangerous driving vide 328B; s578 offences of a sexual nature; s581 offences of dishonesty; s583 attempts to commit always an alternative.

General Verdicts vis a vis Partial Verdicts:

O’Halloran v O’Byrne: eg indictment charging count of rape – verdict of ‘not guilty’ is a general verdict; eg indictment charging a count of rape and a count of indecent assault with intent to rape and a count of indecent assault – say there is a verdict of guilty on the third count, but can’t agree on counts 1 & 2, THIS IS NOT a general verdict – it is a partial verdict – R v Simpson.

DOUBLE PUNISHMENT: S16 Code:

A person may not be punished twice for the same offence. Sec16 of the code provides an accused with protection against being punished twice for the same act or omission. This section operates where a number of offences are joined in the sale proceedings or where there are successive trials.

What is the same act or ommision? Depends on unity of time and place – Hull; same punishable act – Gordon.

The application of sec16 depends on the interpretation of the word ‘act / omission’. In the majority of cases where sec16 has been tried, it has been held to have no application. Several cases relate to the driving of a motor vehicle where the accused has been charged with two offences arising out of the one incident. These have included driving under the influence of alcohol and dangerous driving: Gordon, ex parte; Tricklebank.

In Gordon, the accused, under the influence of alcohol, was driving on the wrong side of a divided highway and collided with a motor cyclist – he was convicted and punished in a magistrate’s Court of being in charge of a motor vehicle while under the influence. Subsequently, he was convicted of dangerous driving causing grievous bodily harm but no penalty was imposed in respect of that offence on the basis that he had previously been punished for the same act – appeal held – that s16 had no application because the punishable act in each offence was different. Williams J pointed out that the punishable act in respect of the drink driving offences was the act of driving in a particular condition – the manner of driving was not relevant. On the other hand the punishable act in respect of the dangerous driving charge was the act of driving in a particular manner – he condition of the driver not relevant : ‘it seems to me the proper test is whether the same wrongful act or ommission which previously resulted in conviction and punishment is the central theme, the focal point and the basic act or omission in the later offence charged.

This broad approach of the word act was also adopted in Philip V Carbone (no2) – there the accused had driven a motor vehicle into a stationery vehicle in which two people were injured. He was convicted and punished on one count of dangerous driving causing bodily harm, but although convicted of such a second count, no punishment was imposed due to s16. Appeal – held according to definition of ‘offence’ in s2 code, the act which makes the accused liable for punishment was the result of his driving – and that was not limited to the mans by which that was brought about. Pidgeon ACJ described the gravaman of the offence as causing bodily harm to a person by driving a vehicle in the specified manner. Because bodily harm was caused to separate victims, there were separate punishable acts and s16 had no application. This interpretation will give limited scope to the provision.

Kiripatea: s16 held to apply.

Weeks 2-3: PARTIES

Complicity provisions apply to all offences in Qld – see sec 2 Criminal Code Act 1899.

Where more than one person is involved in the commission of any offence, criminal responsibility may be determined in accordance with ss7, 8 and 9, the party provisions of the code. A person who is party to an offence is deemed to have committed the offence and may be charged with having committed it. Under s 7, the following categories of parties are given:

(a)every person who actually does the act that constitutes the offence;

(b)every person who does an act to enable or aid anyone to commit the offence;

(c)every person who aids in committing the offence; any person who counsels or procures anyone to commit the offence.

In their operation , the categories have been held to reflect the common law: Wyles ex parte; Johns; Webb ex parte.

The scope of s7 is extended through s8 & 9.

7(a) Offence Jointly Committed

where an offence is jointly committed (for example, where 2 persons combine to perform the acts which constitute the offence), the liability of both arises under s7(a). Where two people open a window in order to break another’s premises with the intention of stealing property within, each of them is deemed to have committed the offence of housebreaking or burglary as a principle offender under s7(a). Also, where one person steals property from the victim, while the other performs violence on the victim, both will have committed robbery. These parties who actually do the offence are called ‘principles in first degree’ at common law.

This provision extends to those who make an omission.

7(b) Aiding / Enabling

7(c)_Aiding

7(d) counselling and procuring

These sections operate to make the aider or counsellor liable in a derivative manner – that it, liable for the offence actually perpetrated by another – thus, in the burglary example above, of only one had entered the premises, a person who stayed outside to keep watch would be liable under 7(b) or (c).

-sec7(b) covers the enabler – the person who makes the crime possible by enabling it or aiding it. 7(b) parties are known as ‘accessories before the fact’ at common law;

- 7(c) covers the person who aids in committing the offence also;

-Similarly, under s7(d), a person who counselled or procured the thief to commit the offence would also be liable for burglary. Nevertheless, acessorial liability is not entirely derivative in nature because, in some situations, the accessory has been found guilty of a crime different from that of the perpetrator.

S 7 is applicable in circumstances where an offence is comitted – a strict interpretation of these words would mean that the aider or counsellor could not be liable if the perpetrator was acquitted or not brought to trial at all: Miller. This rule has now been swept away, and one conspirator can now be guilty regardless of the guilt of his co-conspirator. So provided there has been the commission of an offence by someone, there can be liability for aiding counselling: Cain v Doyle; Lun; Remilland.