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Chapter 19: Attempts to Commit Offences

 Table Of Contents  

[19.0] Introduction 

Whilst the term 'Attempts To Commit An Offence' is not defined in the Interpretation & General Provisions Act (Ch. 85), it is defined in the section 378 of the Penal Code (Ch. 26). 

Section 378 of that Code states: 

'When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.' (emphasis added) 

Section 3 of that Code states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

The term 'Offence' is defined in section 16 of the Interpretation & General Provisions Act (Ch. 85) as meaning: 

'any crime, felony, misdemeanour or contravention or breach of, or failure to comply with, any written law, for which a penalty is provided.' 

It is considered that it is appropriate to refer to section 378 of the Penal Code (Ch. 26) for the purposes of consistency, see R v Wong Chin Kwee & others [1983] SILR 78 and considering that it is consistent with the common law definition, see Susak (1999) 105 ACrimR 592 at pages 594 – 595 & R v Prior (1992) 91 NTR 53; (1992) 65 ACrimR 1 at pages 58 – 59 & 7 respectively. 

[19.1] Elements 

The elements of section 378 of the Penal Code (Ch. 26) are as follows: 

·                     A defendant intends to commit an offence; 

·                     The defendant begins to put that intention into execution by committing an overt act, ie., the defendant does an act necessary to commit the intended offence; and 

·                     That intention is not fulfilled.

[19.2] General Principles 

In Haughton v Smith (1974) 58 CrAppR 198 [[1975] AC 476; [1974] 2 WLR 1; [1973] 3 AllER 1109] the Lord Chancellor, with whom the other Lordships concurred in either principle or in entirety, stated at pages 207 – 214: 

'[I] desire to make an observation on the expression "actus reus" […]. Strictly speaking, though in almost universal use, it derives, I believe, from a mistranslation of the Latin aphorism: "Actus non facit reum nisi mens sit rea." Properly translated, this means "An act does not make a man guilty of a crime, unless his mind be also guilty." It is thus not the actus which is "reus", but the man and his mind respectively. […] 

[…] I derive the following propositions: 

(1) There is a distinction between the intention to commit a crime and an attempt to commit it. Thus, in this case, the respondent intended to commit a crime under section 22 of the Theft Act. But this dishonest intention does not amount to an attempt. […] 

(2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted. […] 

(3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in EAGLETON (supra) as being "proximate" to the completion of the offence and in DAVEY AND OTHERS v LEE (supra) as being "immediately and not merely remotely connected" with the completed offence. […] 

[…] 

[…] I agree with the decision in PERCY DALTON (LONDON) LTD (1949) 33 CrAppR 102, and particularly with the quotation from Birkett J at p. 110 cited by the Lord Chief Justice in the present case where he said: "Steps on the way to the commission of what would be a crime, if the acts were completed, may amount to attempts to commit that crime, to which, unless interrupted, they would have led; but steps on the way to the doing of something which is thereafter, done, and which is no crime, cannot be regarded as attempts to commit a crime." 

I would add to the last sentence a rider to the effect that equally steps on the way to do something which is thereafter not completed, but which if done would not constitute a crime cannot be indicted as attempts to commit that crime.' 

In Davey & others v Lee (1967) 51 CrAppR 303; [1968] 1 QB 366 Lord Parker CJ stated at pages 305 and 370 respectively: 

'What amounts to an attempt has been described variously in the authorities, and for my part I prefer to adopt the definition given in Stephen's Digest of Criminal Law (5th ed.) Art. 50: "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of act which would constitute its actual commission if it were not interrupted." 

As a general statement that seems to me to be right, although it does not help to define the point of time at which the series of acts begins. That, as Stephen said, depends upon the facts of each case. A helpful definition is given in paragraph 4104 … of Archbold's Criminal Pleading, etc., where it is stated: "It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime."' 

Diplock LJ stated at pages 306 and 371 respectively: 

'I accept the definition which my Lord has taken from the current edition (36th) of Archbold as a correct definition of the test to be applied […].' 

In R v Green (1976) 62 CrAppR 74 [[1976] 2 WLR 57; [1976] QB 985; [1975] 3 AllER 1011; [1976] CrimLR 47] Ormond LJ, delivering the judgment of the Court, stated at page 78: 

'[I]ntention alone is not enough to attract the sanctions of the criminal law; proof of a substantive offence requires proof of the act or omission specified in the description of the offence; proof of an attempt requires proof of some act sufficiently proximate to the commission of the substantive offence, which, must be capable of proof, in the sense that its essential constituents are in existence.' 

In R v Williams, Ex parte Minister for Justice & Attorney – General [1965] QdR 86 the Court of Criminal Appeal held at page 100: 

'[A]n attempt is complete if the [… defendant] does an act which is a step towards the commission of a specific crime, and that act cannot reasonably be regarded as having any other purpose than the commission of that specific crime.' (emphasis added) [word in brackets added] 

Therefore, to constitute an 'attempt' a defendant must do an act which is a step towards the commission of the offence which the defendant intended to commit. Furthermore, that act must also be reasonably regarded as having no other purpose other than the commission of the offence in question. 

Perhaps a better way of defining the 'test' is as follows: 

'A defendant must manifest his/her intention by some overt act/s. That is, the behaviour of the defendant in taking into account any intention:

·                     confessed to; or 

·                     which could be inferred from the facts, 

should plainly show the defendant's intention to commit the offence in question. The act/s relied on should be consistent with that intention.' 

Intention, which is a state of mind, can never by proved as a fact, it can only be inferred from other facts which are proved: Sinnasamy Selvamayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, 'the guilt of the defendant must be the only rational inference open to the Court to find in the light of the evidence', see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22) & Martin Sutarake v R (Unrep. Criminal Appeal No. 6 of 1994; Court of Appeal; at page 7). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

In R v Miskell (1954) 1 AllER 137; (1954) 37 CrAppR 214 [[1954] 1 WLR 438] the Court stated at pages 138 and 215 respectively: 

'It has long been established that whether an act or acts can amount to an attempt to commit a crime is a question of law. Once it is decided by the court that what an accused person has done can be an attempt to commit the crime, it is a question of fact for the jury whether what was done should be decided to have been an attempt. Not all acts which are steps towards the commission of a crime can be regarded as attempts. Some may be too far removed from the commission of the crime to be regarded as attempts to commit the crime, but just where the distinction is to be drawn between preliminary acts of preparation and acts which are nearly enough related to the crime to amount to attempts to commit it is often a difficult and nice question.' (emphasis added) 

In Jones v Brooks & Brooks (1968) 52 CrAppR 614 Lord Parker CJ delivering the judgment of the Court, stated at pages 616 – 617: 

'Ignoring entirely the expressed intention that these two respondents admitted, it is clear that the attempt to open this door was equivocal in the sense that it might have been a step towards the commission of a number of different crimes, not merely taking and driving away, but stealing either the car or some contents of the car, or indeed for purely innocent purpose of going to sleep in it. If the expressed intention here is to be disregarded entirely, then quite clearly, in my judgment, the justices were right in saying that it had not been shown that the step in attempting to open the door was a step towards the commission of the specific crime of taking and driving away. It was submitted to the justices, and to this Court, that the expressed intention of these respondents does not enter into this matter at all except at a later stage in considering mens rea. 

I am quite unable to accept that contention. Of course, an expressed intention alone does not amount to an attempt; there must be an actus reus which is sufficiently proximate to the expressed intention. But that does not mean to say that the courts should disregard entirely as part of the surrounding circumstances and the evidence in the case the expressed intention of the respondents, both at the time and after the actus reus. It seems to me that that intention is relevant when the act concerned is equivocal in order to see towards what the act is directed. Once that is decided, then it still remains for the prosecution to show that the act itself is sufficiently proximate to amount to an attempt to commit the crime which it was the intention of the respondents to commit. 

Looked at in this way, I have no doubt that the specific crime being isolated by the expressed intention as one to take and drive away, the insertion of the key into the door and seeking to open the door of the car was an act sufficiently proximate.' 

Section 160 of the Criminal Procedure Code (Ch. 7) states: 

'When a person is charged with an offence, he may be convicted of having attempted to commit that offence, although he was not charged with the attempt.' 

See also: section 39(4) of the Dangerous Drugs Act (Ch. 98). 

See also: R v Robinson [1915] 2 KB 342; (1915) 11 CrAppR 124; R v Woods (1930) 22 CrAppR 41 at page 44; R v Laitwood (1910) 4 CrAppR 248 at page 252; R v Linnekar [1906] 2 KB 99 at page 103; R v Punch (1927) 20 CrAppR 18 at page 20; R v Blockham (1943) 29 CrAppR 37 at page 39; R v Percy Dalton Ltd, Dalton & Strong (1949) 33 CrAppR 102 at page 110; R v Baxter (1971) 55 CrAppR 214 [[1971] 2 WLR 1138; [1972] QB 1; [1971] 2 AllER 539; [1971] CrimLR 281] at page 219; R v Mohan (1975) 60 CrAppR 272 at page 276 & Partington v Williams (1976) 62 CrAppR 220.

[19.3] Examples 

The 'test' can be explained by means of the following examples: 

Example A: 

Suppose (A) decides to break and enter a dwelling - house and steal from that dwelling - house anything of value. At 3am (A) goes to the front door of the dwelling – house which is 10 metres from the edge of the footpath. At that time there is no person in the dwelling – house. Whilst (A) is standing at the dwelling – house a security guard sees him/her turn the door handle on the front door and asks what he/she is doing. (A) states that he/she is there for the purpose of breaking into the dwelling – house and stealing property from in it. At that time (A) does not have possession of instruments which could be used to break into the dwelling – house. 

However, there is sufficient evidence to prove the offence of 'attempted break and enter' because: 

·                     (A) was seen to turn the door handle; 

·                     At that time there was no person in the dwelling – house; and 

·                     (A) admits to the security guard that his/her purpose for being there was to break into the dwelling – house and steal property from in it. 

It is immaterial that (A) does not have possession of instruments which could be used to break into the dwelling – house because he/she had manifested his/her intention by going to the front door of the dwelling – house at 3am, ie., that act of the defendant going to the front of the dwelling – house, and turning the door handle. Furthermore, the purpose of the defendant going to the front of the dwelling – house at that time was to break into it and steal property as admitted to the security guard. 

If the defendant had not been seen to turn the door handle then the prosecution could not prove that he/she had attempted to commit a 'break and enter' offence. The act of going to the front door of the dwelling – house and standing there whilst doing nothing else does not prove by itself that the defendant attempted to break and enter the dwelling – house. 

Without any admission by a defendant to prove intent, the prosecution has to rely on the actions of a defendant to infer intention, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87. Whilst the intention of breaking and entering the dwelling - house and stealing property in the example in question may be inferred, it may also be equally inferred that the defendant did not have that intention and was for example, only looking. Therefore, the prosecution would not be able to prove that element 'beyond reasonable doubt' because the 'only' rational inference was that the defendant intended to commit a 'break and enter' offence. Such offences are examined commencing on page 491. 

However, the prosecution may be able to prove that the defendant committed the offence as specified in section 189 of the Penal Code (Ch. 26). 

The offence of 'Criminal Trespass' is examined commencing on page 502. 

Example B: 

Suppose (A) decides to break and enter a dwelling – house and steal from that dwelling – house anything of value. At 3am (A) whilst in possession of a steel bar goes to the front door of the dwelling – house which is 10 metres from the edge of the footpath. At that time there is no person in the dwelling – house. (A) then places that bar against the front door and was seen to be trying to force that door open by a security guard. (A) makes no admission either to the security guard or the police. 

However, there is sufficient evidence to prove the offence of 'attempted break and enter' because: 

·                     (A) was located standing at the front door of the dwelling – house; 

·                     The front door of the dwelling – house is 10 metres from the edge of the footpath; 

·                     At that time there was no person working in the dwelling – house; and 

·                     (A) was seen trying to force open the front door by the use of the bar. 

It is immaterial that (A): 

·                     does not make any admission; or 

·                     did not break into the dwelling – house, 

because he/she had manifested his/her intention by going to the front door of the dwelling – house at 3am and was seen trying to break into it. 

The conduct of that person is consistent with his/her intention to commit an offence. In such circumstances the 'only' rational inference was that the defendant intended to commit a 'break and enter' offence.

[19.4] Sentencing 

Section 379 of the Penal Code (Ch. 26) states: 

'Any person who attempts to commit a felony or misdemeanour is guilty of an offence, which, unless otherwise stated, is a misdemeanour.' 

Section 380 of the Penal Code (Ch. 26) states: 

'Any person who attempts to commit a felony of such a kind that a person convicted of it is liable to the punishment of imprisonment for a term of fourteen years or upwards, with or without other punishment, is guilty of a felony, and shall be liable, if no other punishment is provided, to imprisonment for seven years.' 

In Koraua & Kaitira v R [1988 – 89] SILR 4 the Court of Appeal commented at pages 5 – 6: 

'Generally speaking, an attempt is to be punished with a lesser sentence than that for the completed offence, but there may be some circumstances in which an attempt will be more severely punished than a complete offence.'

[19.5] Wording Of Charges 

If it is intended to charge a defendant with an 'attempt to commit an offence', then the word 'attempt' should be included in the wording of the charge.