JURD7121 Week 2

Components of Criminal Offences – General Principles, Legal Personhood, Actus Reus

GENERAL PRINCIPLES – 3.1.1

1. Actus non facit reum, nisi mens sit rea: to perform a forbidden act (actus reus) by itself does not make a person guilty of a
crime, it also has to be shown that the person who performed that act had a guilty mind (mens rea)
2. Golden thread: the burden of proof is on the prosecution to prove the guilt of the defendant beyond a reasonable doubt

Holy Grail of Doctrinal Scholarship: assumption that criminal law should be approached initially by reference to the “general part”,
comprising principles applying across the whole field of the criminal law, followed by the study of the detailed definitions of specific
offences

CONSTITUTING LEGAL PERSONHOOD – 3.2

 Not every human mind is regarded as capable of bearing criminal responsibility
 M’Naghten Rules – those who can show that they were insane within these rules at the time when the prohibited
behaviour took place are exempted from criminal responsibility

CHILDREN – 3.2.1
 United Nations Committee on the Rights of the Child 2007 – a minimum age of criminal responsibility below the age of 12 is not
internationally acceptable
 European Union – average minimum age of criminal responsibility is 14
 Common law – all children under 7 were treated as incapable of committing criminal offences
 s 5 Children (Criminal Proceedings) Act 1987 NSW – children under 10 are treated as incapable of committing criminal offences
 Council of Australian Governments – set up a working group to consider raising the age of criminal responsibility
 Law of Council of Australia and the Australian Medical Association – campaigning to raise the age to 14
 NT Government – committed to raising the age of responsibility to 12

 Presumption of doli incapax: where a child has reached the age of 10 but is not yet 14, it is presumed that they lack sufficient
intellectual and moral development and are therefore incapable of wrongdoing  must be rebutted by the prosecution before
criminal proceedings can be brought against them
 To rebut the presumption of doli incapax, the prosecution must point to evidence from which an inference can be
drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was seriously wrong
in a moral sense to engage in the conduct. This directs attention to the child’s education and the environment in
which the child has been raised. What suffices to rebut the presumption will vary according to the nature of the
allegation and the child (RP v The Queen [2016] HCA 53; 259 CLR 642)
 RP (11.5 y/o) was charged (counts 2 and 3) with having anal intercourse with his younger brother (6 y/o)
 1st occasion  had been left in charge of his 2 younger siblings while dad left for work  used
a condom
 Both occasions  brother made it clear that he did not consent
 Appealed from the decision of the NSW CCA that the presumption of doli incapax had been rebutted
 Prosecution did not adduce any evidence apart from the circumstances of the offences to
establish that, despite these deficits, the appellant’s development was such that he
understood the moral wrongness of his acts
 Appeal was allowed in HC  absence of evidence about the environment in which the
appellant had been raised  not open to conclude that the appellant, with his intellectual
limitations, was proved beyond reasonable doubt to have understood that his conduct,
charged in counts 2 and 3, in engaging in sexual intercourse with his younger brother was
seriously wrong in a moral sense
 Tests/principles developed from RP:
1. prosecution must rebut the presumption of doli incapax as an element of the prosecution case
2. proof requires that the child appreciated the moral wrongness of the alleged offence, as
opposed to being aware that the conduct was merely naughty
3. the evidence to prove guilt must be clear and beyond all doubt and contradiction, and
4. the evidence is not mere proof that the child did the act charged, however horrifying or
obviously wrong the act may be.
 Rebutting the presumption of doli incapax  prosecution may rely on various forms of evidence to rebut
the presumption, including:
1. statements/admissions made by the child
2. behaviour of the child before and after the act
3. prior criminal history
4. evidence of parents/home background
5. evidence of teachers, and
6. evidence of psychologists and psychiatrists
 There is no prescribed formula for evidence sufficient to rebut the presumption; that will depend upon the
circumstances in individual cases (AL [2017] NSWCCA 34; 266 A Crim R 1)  reflects the argument that the
presumption focuses criminal liability on those who come from supportive family backgrounds

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 The presumption should be retained (CH 2, Div 7.1 Model Criminal code Report (Aus))
 A parent who, “by wilful default, has contributed directly or in a material respect” to the commission of an offence by
a child is guilty of an offence, but only where the child has been convicted (s 11 Children (Protection and Parental
Responsibility) Act 1997 (NSW))
 In practice, children were being held on remand before assessments were conducted, the burden of proof was
effectively being placed on defendants, and overall, the operation of the presumption prolonged the involvement of
children with the criminal justice system
 English Law on presumption of doli incapax
 C (A Minor) v DPP [1994] 3 WLR 888 (UK case) – the presumption was not part of English law
 C (A Minor) v DPP [1995] 2 WLR 833 – overruled above decision
 s 34 Crime and Disorder Act 1998 – English Parliament abolished the presumption, effectively lowering
the age of criminal responsibility
 Policy arguments in favour of abolition:
1. The rule is divisive  tends to attach criminal consequences to the acts of children coming
from what used to be called good homes more readily than to the acts of others
2. The rule is perverse  tends to absolve from criminal responsibility the very children most
likely to commit criminal acts
3. Delinquents under the age of 14 should bit be held immune from the criminal justice system,
but sensibly managed within it
4. Youngster whose understanding of the difference between right and wrong is fragile or non-
existent who is most likely to get involved in criminal activity
 Arguments for retention:
1. Criminal justice systems can themselves be potentially criminogenic, with early contact being
one of the key predictors of future juvenile offending
2. Raising the age of criminal responsibility has the potential to reduce the likelihood of life-
course interaction with the criminal justice system

ACTUS REUS AND MENS REA – 3.3

 s 3.1(1) Criminal Code (Cth) – breaks up the analysis of criminal offences into 2 components:
1. Actus reus  physical elements  the prohibited event spelt out in the definition of an offence  the act/omission,
the context, or circumstances in which it takes place, and any consequences which must be caused
2. Mens rea  fault elements  the accompanying fault elements

 Doctrine of Dualism (Descartes, 17th century): human beings consist of 2 distinct elements a physical body, which
occupies and moves in space, and a non-physical mind, which thinks and feels. Bodies are public, whereas minds are
essentially private: others can directly observe my body and its movements, but only I can directly observe what is
going on in my mind

 1st issue in a criminal trial  whether the defendant performed the actus reus  to contest this, the defendant may:
1. Argue that the event did not take place at all or that someone else was responsible
2. Accept that they performed the actus reus of an offence, BUT deny that they had the mens rea specified
in the offence definition
 Examples:

s 33 Crimes Act 1900 (NSW) – it is an offence for any person to cause grievous bodily harm to any person, with intent to
cause grievous bodily harm to that person or any other person
Act Circumstance Consequence
Actus Reus Voluntary act None Grievous bodily harm
Mens Rea Intent to act Intent

s 611 Crimes Act 1900 (NSW) – it is an offence for any person to have sexual intercourse with another person without
their consent, knowing that the other person does not consent
Act Circumstance Consequence
Actus Reus Sexual Intercourse Without consent None
Mens Rea Intent to have sexual intercourse Knowledge

s 71.2 Commonwealth Criminal Code – it is an offence to cause the death of UN personnel engaged in UN operations
(other than UN enforcement actions)
Act Circumstance 1 Circumstance 2 Consequence
Actus Reus Voluntary act UN personnel Engaged in a UN Death
operation
Mens Rea Intent to act Strict liability Strict liability Intent, recklessness

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COINCIDENCE OF ACTUS REUS AND MENS REA – 3.3.2

 General Principle: where a fault element is specified in an offence definition, for an offence to be committed, the mens rea must
be contemporaneous with the actus reus
 If an actus reus is performed by the defendant but at that time he/she lacks the necessary mens rea, or vice versa,
the defendant is not guilty of the offence
 act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that
some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no
conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act
which caused the death was one of those done with the necessary intent (Meyers (1997) 147 ALR 440)
 Suggestion that although the defendant had assaulted the deceased in other ways, she had died after
striking her head on a low table or the floor when he pushed her away to get to the phone  if jury
accepted this version of events, defendant is only guilty of manslaughter
 despite the subsequent dishonesty (kept the money after realising he had been given too much change), the
defendant did not have the necessary mens rea at the time when he took the money and performed the actus reus,
and should be acquitted of larceny (Potisk [1973] SASR 389)

 UK cases  diluted the principle by looking at a longer time frame  too rigid an interpretation of the principle results in a
misleading assessment of the defendant’s culpability  we do not fully reflect the defendant’s level of culpability by looking at
a snapshot taken at a particular point in time
 Thabo Meli [1954] 1 All ER 373 – convicted the defendants for murder  found that dividing the conduct into two
separate acts was not possible, and that it was really just one transaction  “There could be no separation such as
that for which the accused contend, so as to reduce the crime from murder to a lesser crime, merely because the
accused were under some misapprehension for a time during the completion of their criminal plot.”
 Defence argument: at the time the man was struck over the head, the intention to kill was present, but
the man was not actually killed. At the time the man actually died from exposure after defendants rolled
him off the cliff, the intention to kill was no longer present because the defendants thought he was
already dead.
 diluted the principle by looking at a longer time frame too rigid an interpretation of the principle
results in a misleading assessment of the defendant’s culpability
 Le Brun [1992] 1 QB 61 – applied the approach taken in Thabo Meli and convicted defendant of manslaughter 
where the unlawful application of force and the eventual act causing death are parts of the same sequence of
events, the same transaction, the fact that there is an appreciable interval of time between the 2 does not serve to
exonerate the defendant from liability. That is certainly so where the appellant’s subsequent actions which cause
death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault
 Defence argument: not guilty because his intention to harm V (punched V on the chin during a heated
argument) did not coincide with the act that killed V (sustained head injury after being accidentally
dropped)
 Fagan [1969] 1 QB 439 – defendant was guilty of assault because the defendant’s act was a continuing one (as
opposed to Thabo Meli where it was acknowledged that although it was dealing with a number of acts, they were
part of one series of acts)
 Defence argument: the act preceded the formation of the intent  defendant accidentally rolled his car
on to a policeman’s foot, refused to remove it after the policeman informed him of this
 Dissent: allowing the vehicle to remain on the policeman’s foot did not constitute an act  there was
therefore no actus reus when the intent was formed

ACTUS REUS – 3.4

 Circumstances: context in which the defendant’s act was committed will be a crucial part of the offence definition  actus reus
will extend beyond the act and will take into account the circumstances
 i.e. offence of sexual assault  requires proof that the sexual intercourse took place in a context (circumstance)
where consent was not given
 some offences have no requirement for proof that a consequence was caused
 sexual assault  no consequence is needed (victim does not need to be made pregnant)
 murder  only committed where the defendant causes death

VOLUNTARY ACT – 3.4.1

 Assertion that the prosecution must prove that the defendant’s acts were voluntary

 Suggestion  act is simply a muscular contraction which causes a part of the body to move  too simplistic as can be applied
to animals  needs to be associated with human behaviour

 A person needs to be conscious at the time a muscular contraction occurs before we will be prepared to say that they acted
 exercise of the will to act: not sufficient simply to be conscious  there must be some connection between the
conscious mind and the bodily movement
 unsatisfactory as many aspects of human behaviour only marginally involve the conscious mind  “automatic pilot”

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 Increasing defence of automatism and reflex movements

 Ryan (1967) 121 CLR 205 – convicted of murder after “unintentionally discharging the gun”, killing the shop the shop assistant
 Prosecution: argued constructive murder  defendant was guilty of murder on the basis that he caused death in the
course of a crime punishable with 25 years (s 98 of the Crimes Act, Robbery with arms etc and wounding)
 Only chance of avoiding a murder conviction is to raise doubt about the voluntariness of their act
 Defence argument: guilty of manslaughter but denied being guilty of murder on the grounds that the killing was
accidental  pulling the trigger was a “reflex” when he got startled  act is therefore not voluntary
 High court found him guilty of murder
 Windeyer J: Ryan’s actions did not fit into the same category of involuntariness as someone acting under
duress, or someone suffering from a seizure or sleep-walking. The death was caused not merely by the
pulling of the trigger, but by many acts of the accused: loading the rifle, cocking it, presenting it, pulling
the trigger. It was the last in this long chain of voluntary acts that made the conduct lethal.
 Menzies J: did not think voluntariness was an issue. The defendant’s argument was that the death was
accidental, and under the doctrine of constructive murder, this was no excuse
 Saying the action was automatic should not excuse a fully conscious person who, by his own free will, put
himself in a situation where he loaded, cocked, and pointed a gun at another person

What is A Relevant Act? – 3.4.1.1

 A person is not criminally responsible for “an act or omission that occurs independently of the exercise of the person’s will” (s
23(1)(a) Criminal Code)

 Murray [2002] HCA 26; 211 CLR 193 – charged with murder under s 302(1) of the QLD Criminal Code
 Defence argument: admitted pointing the gun at the victim in order to scare him into leaving the house, but the shot
gun “accidentally” went off when the deceased’s arm shot out and something hit the defendant’s head
 Gaudron J: it is for the jury to determine what act(s) were done by the defendant, whether they or any of them
caused death, and whether a reflex action or automatic motor action was an involuntary or unwilled act
 Gummow and Hayne JJ: identified the act as a composite set of movements (load, cock, present, fire) rather than
isolating the pulling of the trigger
 important to avoid an overly refined analysis in deciding what is the relevant act
 The more narrowly defined is the “act”, the more likely it is that there will be thought to be some
question about whether the accused willed that act
 The more precise the identification of a particular physical movement as the “death-causing act”, the
more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and
particular physical movement
 The latent time (between threat, or assault, and firing the weapon) no doubt barely appreciable, and
what was done might not have been done had the actor had time to think
 Once it is recognised that the act is the act of discharging the loaded gun, it can be seen that the act
comprises a number of movements by the appellant that can be identified as separate movements 
loaded the gun, cocked it, presented it, fired it  cannot be therefore said that the act was an unwilled
act  no basis for concluding that the set of movements, taken as a whole, was not willed
 Even if Murray was struck was something thrown by the deceased and he started as a result, and in doing
so pulled the trigger, his “act” did not occur independently of his will

 Followed the approach in Murray and emphasised that the determination of the act causing death was a factual one for the jury
(Koani [2017] HCA 42; 263 CLR 427)

 If, however, on the facts no issue relating to the voluntariness of the act arises, the trial judge can withdraw the issue from the
jury and the whole set of movements need to be considered (in the context of felony murder) (Whitfield [2002] NSWCCA 501)

 Ugle [2002] HCA 25; 211 CLR 171 – defendant was convicted of the offence of wilful murder under WA’s Criminal code after he
had “accidentally” stabbed the victim when he was trying to fend off the victim who was swinging a cricket bat at him during a
fight
 HC held that the trial judge has erred in failing to direct the jury to consider whether the defendant’s act of stabbing
the victim occurred “independently of the exercise of his will within s 23 of the Code
 Question for the jury should have been:
 Whether the knife had entered the body of the deceased independently of the exercise of will of the
appellant
 Did the appellant put the knife in the body of the deceased, or did the deceased impale himself on the
knife the appellant was holding?
 Appeal upheld and new trial ordered it was possible for the jury to find that the man did not act voluntarily in
entering the knife into the body of the victim, which would have allowed for an acquittal

 Whether a voluntary act could be found earlier in the sequence of actions carried out by the defendant where his later actions
were clearly involuntary (in the context of driving offences) (Jiminez (1992) 173 CLR 572)
 A person cannot be liable for an act they committed while asleep, but the time preceding the act is considered (e.g.
falling asleep at the wheel and killing a passenger)

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 Drivers are often confronted with an emergency which requires them to take steps to avoid an accident. Even if the evasive
action fails to avoid the accident, it does not necessarily amount to driving in a dangerous manner (R v Coventry (1938) 59 CLR)

 Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in
dangerous manner may be so nearly contemporaneous with the impact as to satisfy the element of dangerous driving.
Contemporaneity is a question for the jury (McBride v The Queen (1966) 115 CLR 44)
 for the driving to be dangerous there must be some feature which is identified not as a want of care but which
subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle,
including driving by persons who may, on occasions, drive with less than due care and attention

 An offence such as culpable driving requires the relevant driving to have been voluntary and that driving while asleep does not
constitute a voluntary act  a driver cannot be convicted of causing death or bodily injury by dangerous driving in respect of a
period during which the driver is asleep  BUT if a driver who knows or ought to know that there is a significant risk of falling
asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner
dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is
sufficiently contemporaneous with the death or bodily injury (R v Kroon (1990) 52 A Crim R 15 (SA case))

 The manner of driving encompasses all matters connected with the management and control of a car by a driver when it is
being driven (R v Coventry (1938) 59 CLR)

 Applied the reasoning in Jimenez  appellant had an epileptic fit which resulted in a fatal collision; he was aware of his medical
condition and knew he was at risk of having a seizure which would cause him to lose control of the car, and therefore his driving
was relevantly the cause of the accident and deaths (Gillett [2006] NSWCCA 370; 166 A Crim R 419)

Voluntariness and Causation – 3.4.1.2

 The prosecution must prove that a voluntary act of the defendant caused death for the actus reus of unlawful homicide to be
complete

 Taylor and Owen JJ argued that the death was caused by a combination of acts and that there were earlier, clearly voluntary
acts in the chain of event before the pressing of the trigger (Ryan (1967) 121 CLR 205)

 Gummow and Hayne JJ took a similar approach  physical acts/movements should be looked at as a whole series of events
when considering voluntariness (Murray [2002] HCA 26; 211 CLR 193)

 NSWCCA drew a distinction between 2 issues: the identification of the death-causing act(causation) and the separate issue of
whether that act was willed (voluntariness)  both were issues for the jury to determine (Katarzynski [2005] NSWCCA 72)
 defendant was holding a revolver pointed towards the ground when the deceased lunged at him with his arms
outstretched. Defendant moved backwards and “flinched”, causing the gun to discharge
 Sully J: any normal body of 12 persons would have regarded it as a matter of commonsense that the death-causing
acct was the firing of 3 pistol shots, one of them lethal, rather than the sequence of acts beginning with the
defendant pulling a postil known by him to be loaded out of his pants. However, when it came to determining
whether that act was voluntary, it was appropriate for the jury to have regarded to the continuum of conduct
commencing with the alleged luring of the victim by the appellant to the location of the shooting

Actus Reus, not Mens Rea – 3.4.1.3

 The requirement that the prosecution must ultimately prove that the defendant’s acts were voluntary before they will attract
criminal liability is classified as an aspect of actus reus rather than mens rea
 A minimal degree of mental control is required for every criminal offence, regardless of whether or not a higher
degree of mental awareness must be proved as an aspect of the mens rea for the offence
 Important in relation to offences of strict and absolute liability, where there is nothing in the mens rea of the offence
which requires an inquiry into the defendant’s state of mind

CAUSATION – 3.4.2
 We cannot say that a factor is a cause of a consequence unless that consequence would not have occurred at the time but for
the presence of that factor

 Courts distinguish but-for causation from a narrower concept of legal causation  courts are not concerned to discover the
causes of a particular consequence, but only whether the defendant’s act or omission was a significant cause, amounting to a
legal cause (Arulthilakan [2003] HCA 74; 203 ALR 259)

 Causation is a question for the jury, applying “common sense” (Royall (1991) 172 CLR 378)

 Be wary of seeking to apply principles and tests of causation developed in the context of homicide to other offences requiring a
consequence to be caused

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 Courts will focus on the meaning of the concept in the precise context in which it appears rather than searching for
“general principles” of the criminal law of sufficient specificity to provide detailed guidelines
 UK House of Lords insisted that the statements made about causation by the same court in the pollution case of
Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 were irrelevant to the issue of whether the
defendant had caused someone to administer a drug which endangered their life (Kennedy (No 2) [2008] 1 AC 269)

 Where an offence definition requires a consequence to be brought about, the offence is not committed if the consequence does
not eventuate  criminal responsibility is substantially affected by outcome

OMISSIONS – 3.4.3
 Some offences cannot be committed by an omission as distinct from an act  rape, larceny (requires proof that an object was
taken and carried away)
 an assault cannot be committed by an omission (Fagan [1969] 1 QB 439)

 Common law only imposed liability for omissions in the limited circumstances where it was prepared to say that there was a
legal duty to act  did not impose duty on a stranger to rescue somebody, even if the stranger could have saved the other
person without risk to themselves

 Many statutory offences specifically impose duties to act on people carrying out certain activities, on pain of criminal penalty 
e.g. producing drivers licence on request, filing tax returns, pollution-related offences
 s 148 Protection of the Environment Operations Act 1997 – where a pollution incident which causes or threatens
material harm to the envt occurs in the course of an activity, those carrying out the activity have a duty to notify
relevant authorities. Failure to notify is punishable with a fine of up to $2M and a daily penalty of $240k where a
corporation is involved
 s 19 Work Health and Safety Act 2011 – those conducting a business or undertaking must ensure, so far as is
reasonably practicable, the health and safety of workers while at work
 s 316A Crimes Act 1900 – any adult who knows, believes or reasonably ought to know that a child abuse offence has
been committed, is guilty of an offence of they do not report relevant info to the police

 We have to look at the definition of each and every criminal offence to discover if it can be committed by omitting to do
something, rather than relying on general principle

STATUS OFFENCES – 3.4.4

 Prosecution does not have to prove any action on the part of the defendant. Criminal liability results from the fact that
someone is found in a particular position
 Larsonneur (1933) 24 Cr App R 74 – defendant was convicted of being found in the UK in breach of the Aliens Order
1920 when she was deported back to the UK after having left it at the end of her permitted stay
 s 546B(1) NSW Crimes Act – it is an offence for a person already convicted of an indictable offence to be found in or
near a public place with intent to commit an indictable offence
 s 11G(1) Summary Offences Act 1988 – it is an offence for a convicted child sex offender to loiter without reasonable
excuse near a school
 s 310J NSW Crimes Act 1900 – it is an offence if a person is intentionally a member of an org which they know to be a
terrorist org, punishable with up to 10 years imprisonment
 s 102.3 Criminal Code (Cth) – to escape above conviction, they must prove that they took all reasonable steps to
cease the membership as soon as practicable after finding out that the org was a terrorist org

ACTUS REUS FOR ATTEMPT – 3.11

 Doctrine of Criminal Attempt: attempt is an inchoate criminal offence  it is an offence to attempt to commit any of the
offences in the Crimes Act
 s 344A Crimes Act – fixes the maximum penalty for attempt at the same penalty as for the completed offence
 exception: max penalty for incest is 8 years (s 78A) but only 2 years for attempted incest (s 78B)
 defendants who are convicted of attempt will often receive a more lenient sentence than if they had been
convicted of the completed offence
 assumption that at least some of those who set out to complete a criminal offence should be convicted of an offence
even id they fail to complete the actus reus of that criminal offence
 operates to criminalise unsuccessful efforts to commit a crime in 2 main situations:
1. defendant has performed certain acts in pursuance of the planned crime, but before completing all the
required acts, defendant is interrupted and prevented from completing the remaining acts, or has a
change of heart and decides not to go through with the planned offence
 allows the police to intervene without jeopardising the prospects of convicting the perpetrator
of a criminal offence
2. defendant has performed all the acts considered necessary to commit the planned crime but fails because
of flows in the execution or because relevant circumstances were not as they believed them to be
 has performed all the acts necessary to realise their criminal intent

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 equally as blameworthy as someone who has successfully completed the offence

 or may try again and succeed with practice

ACTUS REUS: ACTS OF PREPARATION AND ACTS OF PERPETRATION – 3.11.1

 Actus reus of attempt is not defined as precisely as the actus reus of most offences

 Draws a distinction between acts of preparation and acts of perpetration

 acts of preparation are not sufficient to constitute an attempt (McMillan v Reeves (1945) 62 WN (NSW) 126)

 Leading decision on the theory of PROXIMITY (DPP v Stonehouse [1977] 2 All ER 909)
 Issue: Whether the act of staging death was sufficiently proximate to obtaining proceeds under an insurance policy
to amount to an attempt to obtain the proceeds
 Outcome: the appeal was dismissed and the accused convicted
 It did not matter that the defendant had not conveyed the false information of his death to England as it
was the intended, natural and inevitable consequence of his staged death that the information would be
conveyed to England by the media
 The conduct of the defendant was sufficiently proximate to the commission of the complete offence to
amount to an attempt The defendant had done all the physical acts within his power to bring about the
completed offence which would have succeeded had he not been discovered alive
 Conceded that a mere act of taking out the insurance policies was, at most, only an act of preparation
 Suggested that where a crime is not completed, the principal may be indicted for an attempt to commit the crime,
provided that:
a) It is capable of being committed
b) He has himself or his agent performed an act(s) which show that he is trying to commit the crime, as
distinct from merely getting ready to commit it
 “…the offender must have crossed the Rubicon and burnt his boats. In the instant case…the accused had done all the
physical acts lying within his power that were needed to enable Mrs Stonehouse to obtain the policy monies if all
had gone according as he had intended. There was nothing left for him to do thereafter except to avoid detection of
his real identity. That was the day he crossed the Rubicon and burnt his boats.”
 Criticised the decision in Robinson [1915] 2 KB 342 – the ruling that there cannot be a conviction for an attempt to
obtain by false pretences/deception unless the pretence/deception has come to the knowledge of the intended
victim should not be followed  court was wrong in treating all preceding acts as mere preparation and therefore as
not amounting to perpetration of an attempt to commit the full offence

 Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts
immediately connected with it are (Eagleton (1855) Dears CC 515)
 Criticism: stresses the necessity for the act charged to be “immediately connected” with the full offence  an
attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts
which would constitute its actual commission if it were not interrupted
 Does not help to define the point of time at which the series of acts begin
 Too narrow  one may attempt a crime by impossible means  attempt is doomed to failure quite far
apart form interruption
 Too wide  many acts that have been held to be mere preparation were part of a series of acts that
would have constituted the actual commission of the crime if it were not interrupted

 Ingredients of a criminal attempt (Haughton v Smith [1973] 3 All ER 1109):

1. Elements of intention
2. Elements of the necessity for the overt acts charged to be part of a series of acts which would constitute the full
offence if uninterrupted
3. Element of proximity

 it is a general principle of British law that, on a trial by jury, it is for the judge to direct the jury on the law and, in so far as he
thinks necessary, on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts (Joshua
v R [1955] 1 All ER 22)

Proximity and Equivocality – 3.11.1.1

 Proximity test: whether the defendant’s conduct is sufficiently proximate to the commission of the completed offence to
constitute an attempt to commit that crime has 3 dimensions:
1. Temporal – how much time remains before all necessary acts for the completed offence will have been undertaken?
2. Physical – how near is the defendant to the physical location where the completed offence is to be committed?
3. Task-related – how many more tasks must the defendant undertake before the completed offence will have been
committed?

 Equivocality test: followed by the NSWCCA

 Origins in the decision in Davey v Lee [1968] 1 QB

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JURD7121 Week 2
Components of Criminal Offences – General Principles, Legal Personhood, Actus Reus

 NSWCCA framed the actus reus of attempt as being some act towards the commission of the intended crime which
goes beyond mere preparation and which cannot reasonably be regarded has having any purpose other than the
commission of that crime (Mai (1992) 26 NSWLR 371)
 Issue: whether an accused should be convicted of attempt when it was impossible to commit the offence
the have been charged with attempting to carry out
 Outcome: the defendant was found guilty of attempted possession of a prohibited import The court held
(at 381-2) that even if it is physically impossible for the accused to commit a particular crime, there is an
attempt to commit it if the prosecution proves:
a. That the accused intended to do the acts with the relevant state of mind which together
would comprise the intended crime (that is if the facts and circumstances had been as he
believed to be, he would have committed that crime), and
b. That, with that intention and which cannot reasonably be regarded as having any purpose
other than the commission of that crime
 Requires the prosecution to prove that the defendant intended to commit a particular crime, and then to
show that his actions could only be explained as being directed to that purpose
 NSWCCA held that the jury’s guilty verdict was not unreasonable (Inegbedion [2013] NSWCCA 291)
 In their decision the court drew attention to the fact that David Okeke’s name was found in the
defendant’s wallet and the car contained over $11,000 in cash as well as the name and address of the
person whom international money transfers had been made in David Okeke’s name
 In reaching this decision, the NSWCCA referred with approval to the equivocality test

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