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620 THE MODERN LAW REVIEW VOL.18

Upjohn J. did not expressly state that there were no circum-

stances in which an injunction could be awarded against a Minister
in his official capacity. Unless, however, a court is prepared to
draw analogies with the law of mandamus and to impute a some-
what artificial duality to the official functions of Ministers, there
is little prospect that this relief will ever in fact be granted to a
party aggrieved by an ultra vires act performed by a Minister qua
Minister. This is unfortunate, for although the public interest may
suffer if a court injudiciously exercises a discretion to award an
injunction against a Minister, it will certainly suffer if the courts
consider themselves to be invariably precluded from awarding
against Ministers the most effective form or relief for parties whose
interests are or are about to be injured by unlawful conduct.
S. A. DE SMITH.

THE ACTUSREUS IN CRIMINAL ATTEMPTS

THE answer to the question whether an act amounts to a criminal
attempt is, in the English authorities, discussed in terms of
“ proximity ” to the crime intended, and it has been said that no
abstract test can be formulated to determine whether the act is
sufficiently “ proximate.’’ Sir John Salmond, however, sug-
gested a test which Professor Glanville Williams has labelled the
“equivocality” t h e ~ r y . ~In a judgment in the New Zealand
Court of Appeal Salmond J. applied this test to determine whether
or not an act was sufficiently proximate to constitute an attempt.
I n view of Professor Williams’s assertion that Salmond J.’s
theory, while not having received judicial support in England but,
having been approved in Archbold, “ i s perhaps in a fair way to
official adoption,”5 the effect of its application in Campbell 4
Bradley v. Ward [1955] N.Z.L.R. 471 is important as showing the
unfortunate results to which it may lead.
Salmond J., in Barker, formulated the test as follows:
An act done with intent to commit a crime is not a criminal
attempt unless it is of such a nature as to be in itself sufficient
evidence of the criminal intent with which it is done. A
criminal attempt is an act which shows criminal intent on the
face of it. The case must be one in which res ipsa loquitur.
An act, on the other hand, which is in its own nature and on
the face of it innocent is not a criminal attempt. It cannot be
brought within the scope of criminal attempt by evidence
aliunde as to the criminal purpose with which it is done.=
1 See, e . g . , Kenny, Outlines of Criminal L a w , 14th ed., p. 82.
* Salmond, Jurisprudence, 10th ed., pp. 387. 388.
* Glanville Williams, Criminal L a w . The General Part, p. 483.
4 Barker [1924] N.Z.L.R. 865.
6 o p . c i t . , p. 483.
6 Barker (supra), p. 874.
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Nov. 1955 NOTES OF CASES 621

Elsewhere in the judgment, an act meeting this requirement is

referred to as actue loquens.
The facts in Campbell Q Bradley v. W a r d were as follows. E.,
on returning ta his motor-car which had been left unattended, saw
a man, McCallion, emerging from the front seat. McCallion ran off
and entered another car which was standing nearby with its engine
running and in which were the two appellants, Campbell and
Bradley. E. jumped on the running board and, after a struggle,
succeeded in pulling McCallion out. The car, with the two appel-
lants in it, drove off down the road. It subsequently returned but
was not stopped and the appellants were not arrested until later.
They were charged, together with McCallion, with an attempt to
steal a battery from E.’s car. Bradley made a statement in which
he said that he and his companions had “ agreed that it would be
‘ a good idea’ to get a battery, and McCallion tried to get into
several cars for that purpose, and with the subsidiary purpose of
getting a radio for Campbell.” Campbell also made a statement
to the effect that McCallion had attempted to get into cars with the
intention of stealing anything he could (without specifying either a
battery or a radio) and he further admitted that it was their inten-
tion to share in anything that was taken. McCallion apparently
also made a statement which was, of course, inadmissible against
either of the appellants. All three were convicted by a stipendiary
magistrate and Campbell and Bradley appealed.
F. B. Adams J. held, on appeal, that he was bound by a state-
ment of the New Zealand Court of Appeal in Y e l d s Y 7to consider
not only the proximity of the act, but also whether it was actus
Zoquens; that is, he had to apply, in Professor Williams’s ter-
minology (which the learned judge adopted), both the proximity
test and the equivocality test. Salmond J. had originally formu-
lated the equivocality theory as a means of determining whether
or not the act was sufficiently proximate, but F. B. Adams J. held
that
His [Salmond’s] view that the latter is exhaustive has been
authoritatively rejected.
This note is not concerned to discuss this rather curious result
nor how the law of New Zealand has arrived at it, but is concerned
only with the effect of the application of the equivocality test.
That test must now be applied in New Zealand, not merely as a
means of determining whether or not an act is sufficiently proximate
but as a separate and additional test to determine whether an act
(sufficiently proximate) may constitute an attempt. This fact
7 [1928] N.Z.L.R.18.
8 s. 93 (2) of the Crimes Act, 1908, wiz.,
I ‘ The question whether an act done or

omitted with intent to commit an offence is or is not only preparation for the
commission of that offence, and too remote to constitute a n attempt to commit
it, is a question of law,” is expressed in terms of remoteness, but this was
taken by the learned judge as being equivalent to the rule expressed in terms
of proximity.
VOL.18 40
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622 THE MODERN LAW REVIEW VOL. 1s

throws into striking relief the differing consequences that flow from
the application of each test.
The learned judge said that, if he were free t o apply the
“proximity ” test without qualification, he would have had n o
hesitation in holding, as against the appellants, that McCallion’s
conduct was sufficiently proximate t o constitute an attempt t o
steal whatever was t o be stolen. With the necessary proof of intent
he would then have held that his conduct amounted to an attempted
theft, leaving only the further question whether the appellants
were parties t o the attempt within the meaning of section 90 of the
Crimes Act, 1908 (which codifies the law relating t o parties). But
as he held himself bound t o decide also whether the acts of
McCallion were unequivocal as t o the crime intended and as, on
the evidence, those acts were necessarily equivocal, the appellants’
statements being inadmissible t o settle the equivocality, he held
that the appeals must be allowed.
The difficulties flowing from the qualified adoption of Salmond
J.’s test were expressed by the learned judge as follows:
I n the first place, as explained above, i t [the equivocality
theory] may exclude overt acts that are proximate, and are
proved ab extra to have been done with the necessary intent.
I n the second place, it precludes resort t o extraneous evidence
for the purpose of identifying the particular crime intended.
To take Professor Glanville Williams’s illustration of the masked
man found in an enclosed yard a t night, the question whether
he was attempting burglary or arson-or, indeed, whether he
was contemplating any crime a t all-though unequivocally
resolved by his confession, may be capable of being resolved
without resort t o such extraneous evidence; and, the overt act
being equivocal, our law as it stands prohibits conviction on
any charge of attempt, no matter how clearly a speci6c
criminal intent may be proved by subsequent confession or
other extrinsic evidence of intent.
And he added:
I n those circumstances, though the court knows full well as
against both appellants that it was theft that was contem-
plated, it is impossible t o convict them of attempted theft.
Accordingly, the convictions for the attempt cannot stand.
If this be regarded as unsatisfactory, the remedying of it seems
t o rest with the legislature.
An earlier case, in which the New Zealand Court of Appeal
applied Salmond J.’s test, has been held up by Professor Glanville
Williams l o as a warning t o other jurisdictions. F. B. Adams J.,
in the instant case, expressed the opinion that the decision in
,lloore might well have been the same on a simple application of
the proximity rule, but if further warning is needed, in view of the

9 [1926] N.Z.L.R. 974.

10 op. tit., p.
485.
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Nov. 1955 NOTES OF CASES 623

possibility of Salmond J.’s theory being accepted elsewhere than

in New Zealand, Campbell Q Bradley v. Ward may be offered as
a substitute.
P. B. A. SIM.

INVITEES-NOTICEOF UNUSUAL DANGERS

To the formidable list of common law judges who have rejected
the principle upon which the majority of the House of Lords
decided London Graving Dock Co., L t d . v. Horton [1951] A.C.
737 all the members of the Irish Supreme Court may now be added.
A Note on the contrary and novel opinion of one Irish judge,
Kingsmill Moore J., in Long v. Saorstat Continental Steamship
Co., Ltd. (1953, still unreported) appeared in these pages last
year: vol. 17, pp. 160-2. Now in lllaguire v. Pacific Steam
Navigation Co., L t d . (1955, unreported as yet) the Irish Supreme
Court has unanimously adopted and applied this opinion.
I n the latest case M., the plaintiff, was a docker, employed by
a firm of stevedores, whose duty was t o help in unloading the cargo
of a ship belonging to the defendants. While M. was engaged upon
this work part of the cargo fell on him and caused him substantial
injuries. A net which the defendants had erected to guard against
such an event proved ineffective. The facts found by the jury, that
the cargo constituted an unusual danger, and that the defendants
knew or ought t o have known of it, were not contested in the
Supreme Court. The findings that M. was not himself negligent
and that he had not voluntarily accepted the risk of injury were
confirmed on appeal. But the Supreme Court did hold that the
finding that M. did not know of the danger could not stand.
Given then that the plaintiff knew of the danger, the very same
problem which confronted the House of Lords in Horton’s case was
now before the Irish Supreme Court. As the Chief Justice said:
“ T h e question t o be considered is whether an invitor can be held
liable in tort for injury caused by the dangerous state of his
premises of which he knew or ought to have known to an invitee
who though sciens was neither volens nor careless of his own
safety.” He noted that the majority of the House of Lords in
Horton’s case held that the invitee’s knowledge of the unusual risk
exonerated the occupiers from liability for the damage sustained
by the invitee. But he preferred t o adopt the contrary opinion of
Kingsmill Moore J. in Long’s case, supra. Applying this principle
to the facts he held that the shipowners, as occupiers, had failed
t o use reasonable care t o prevent damage t o the plaintiff.
Accordingly, under the principle of Indermaur v. Dames (1866)
L.R. 1 C.P. 274, the shipowners were liable to the plaintiff.
Lavery, O’Daly and Maguire JJ. concurred. Kingsmill Moore J.,
of course, agreed with this judgment, but took the opportunity of
restating his view of the relevance of notice :