[2-250] Introduction

State offences

As to the availability of a charge of attempt to commit an offence or an assault with intent to commit an offence as an alternative verdict for any indictable offence: see s 162 Criminal Procedure Act 1986.

As to the general power of a jury to find a verdict of attempt for an offence within the Crimes Act 1900: see Pt 8A, s 344A Crimes Act.

As to attempt generally: see Criminal Practice and Procedure NSW at [6-300]; Criminal Law (NSW) at [CLO.320]ff; Laws of Australia at [9.2.900]ff (as at 20/3/08); Halsbury Laws of Australia at [130-7000]ff (as at 1/11/10).

Commonwealth Code

As to attempt under the Criminal Code (Cth) 1995: see s 11.1 of the Code and generally Onuorah v R (2009) 76 NSWLR 1.

As to attempts under the Code generally: see Federal Criminal Law at [5A-11.1] and Commentary.

Although the common law is that the accused must intend to commit the offence attempted, there is dicta that suggests that under the Criminal Code (Cth) recklessness is a sufficient mental state in respect of the offence attempted notwithstanding the terms of s 11.1(3): see O’Meara v R [2009] NSWCCA 90 at [61].

[2-260] Procedure

The availability of an alternative verdict of attempt should be raised by the Crown in opening or at the very least before closing addresses of counsel: R v Pureau (1990) 19 NSWLR 372. The question as to the appropriateness of raising the alternative verdict of attempt is whether it results in any unfairness to the accused: R v Quinn (1991) 55 A Crim R 435. See further at [2-200].

[2-270] Suggested direction

Note: The charge of attempt may be the only charge on the indictment or it may be left as an alternative to the offence charged in the indictment. In the latter case, the judge must explain how the Crown puts the case of attempt as an alternative verdict to the substantive offence charged in the indictment: R v Crisologo (1997) 99 A Crim R 178 at 187 applying R v Pureau, above. The jury must also be instructed to acquit the accused of the substantive charge if they find the accused guilty of attempt: R v Crisologo at 187.

[Where the offence of attempt is the only offence on the indictment

In order to prove that the accused is guilty of an attempt to commit the offence of [state the offence attempted], first, the Crown must prove beyond reasonable doubt that the accused intended to commit the crime which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted in circumstances which make those acts criminal. [State the physical elements of the attempted crime and the relevant circumstances. For example, in an offence of attempted sexual intercourse, the accused must have intended to have intercourse knowing that the complainant was not consenting or to have been reckless to that fact.]

Next, the Crown must prove beyond reasonable doubt that the accused, with that intention, did some act toward committing the intended crime which was immediately connected with the commission of that crime and which cannot have any other reasonable purpose other than the commission of the crime. This may sound complicated but you must understand that the law does not generally punish a criminal intention without any accompanying physical act: it is not an offence to form the idea that you would like to rob a bank. Nor does the law punish acts by a person that are done merely in preparation to committing a crime. For example, it is not an attempt to commit a robbery merely if a person purchases a balaclava thinking that it might be used to rob a bank sometime in the future.

So, if you are satisfied beyond reasonable doubt that the accused intended to commit the crime alleged, [he/she] is not guilty of the crime of attempt unless the accused has with that intention committed an act that is more than mere preparation to commit the crime. [He/she] must have actually embarked upon the commission of the crime that [he/she] intends to commit. If you find beyond reasonable doubt that the accused had the required intention and committed acts with that intention in mind, you must then determine whether the acts that you find the accused committed were merely preparatory acts toward committing the crime. If you form the view that they are preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, the accused may be found guilty of the charge of attempt.

[If necessary, incorporate as much of the Suggested direction above to suit the circumstances of the case.]

[The following example may be considered appropriate

Assume that a young man gets into his motor vehicle with a bag containing a balaclava and replica pistol and has a map showing how to get to a particular hotel. If on the way he is stopped by a police officer for some traffic infringement and these items are found, a jury might well find that, although he intended to rob the hotel, his acts are merely in preparation for that offence. He might have committed some offence but not the offence of attempting to rob the hotel. On the other hand, if he arrives near the hotel, leaves his vehicle wearing the balaclava and carrying the pistol but is confronted by a police officer as he opens the hotel door, a jury might find that he has gone further than merely acting in preparation to commit the offence but has embarked upon it only to be frustrated by the presence of the police officer. In that situation, the jury might find that he has committed the offence of attempted robbery. It is a matter for you to assess the facts and determine whether beyond a reasonable a doubt the accused has proceeded so far in carrying out [his/her] intentions as to amount to an attempt to commit the crime intended.]]

[Where the offence of attempt is an alternative to a charged offence

The Crown has alleged that the accused committed the offence of [state offence charged]. However, the Crown argues that, even if you are not satisfied beyond reasonable doubt that the accused completed all the acts necessary to have committed that offence, you would find beyond reasonable doubt that the accused attempted to commit that crime.

[Indicate to the jury, the Crown’s alternative argument for the jury finding beyond reasonable doubt an attempt rather than the offence charged in the indictment.]

I direct you that the alternative charge of attempt cannot be used as a compromise verdict, so that it is a verdict given simply because some of you thought he was not guilty of the charge in the indictment but some thought that the charge had been proved beyond reasonable doubt. The alternative arises because you may collectively have a doubt that the offence charged was committed yet all agree that the Crown has proved beyond reasonable doubt that the charge of attempt has been proved. If you have not been satisfied that the accused is guilty of the crime charged, you must find [him/her] “not guilty” of that crime before you can bring in the alternative verdict that [he/she] is “guilty” of “attempting to commit” that crime.]