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5. ATTEMPT.pptx

  1. 1. LLB 104 Criminal Law Attempt Norhakimah binti Seman @ Abdullah
  2. 2. Introduction HELP LLB 104 2 The law needs to prevent person from trying to kill. Punishment in such cases serves as appropriate deterrent notice to both the individual concerned and the public at large of the consequences of such acts. An attempt to commit a crime is only punishable to a maximum of one-half the maximum term of imprisonment available for the completed crime.
  3. 3. There are 4 stages in every crime • This was explained in Thiangiah & Anor v PP (1977) to relate to:- a) An intention to commit the offence b) The preparation for its commission c) Attempt to commit it d) Actual commission of the offence.
  4. 4. • The mere forming of an intention to commit a crime and the making of preparation for its commission are not criminal acts and are not punishable under the law. • There must be some further overt act on the part of the offender which is directed towards the commission of the crime and which is immediately and not remotely connected with the crime in order to constitute an attempt. • A crime is not complete if something happen when the attempt to commit it is being made, thereby breaking the chain of events which, if not for the intervening interruption, would have led to consummation of the crime. In such event, the offender is liable for an attempt. HELP LLB 104 4
  5. 5. Structure of Liability HELP LLB 104 5 Attempts in Malaysia is provided for and punishable in one of three ways: • Section 511: general provision of attempt • Specific attempts • Definition of crime includes attempt
  6. 6. 1. Section 511 – General provision of attempt HELP LLB 104 6 This is extremely broad provision. One can be liable for attempting to commit any offence, whether under Penal Code or any other statute. Offences that can be attempted are those punishable with imprisonment or a fine or combination of both.
  7. 7. 2. Specific attempts HELP LLB 104 7 There are a few specific provisions in the Penal Code penalizing types of attempt: S 307 - attempted murder S 308 - attempted culpable homicide S 309 - attempted suicide S 393 - attempted robbery s 511 cannot be applied to attempted murder as murder is not punishable with imprisonment; s 511 cannot be applied to attempted suicide as there is no crime of suicide.
  8. 8. 3. Definition of crime includes attempts HELP LLB 104 8 Certain crimes are defined in such a manner that the full crime is committed either by a successful completion or by an attempt. E.g.: S121 of the Penal Code provides that “whoever wages war against the YDPA or against any of the Rulers of YDPN, or attempts to wage such war…”
  9. 9. HELP LLB 104 9 S391 of the Penal Code, “When two or more persons conjointly commit or attempt to commit robbery…” Attempt under this category unlike the former two categories, completed and attempts here carry the same potential maximum punishments.
  10. 10. Elements • Attempt begin when preparations are completed & culprit commences to do something with intention of committing offence that is a step towards its commission 1. Accused must have proceeded beyond stage of preparation • Act must be more than preparatory act 2. Actions must be sufficiently close / proximate to completed offence • Need not be penultimate act leading immediately to commission of offence • (Abhayanand Mishara v State of Bihar) 3. Act must be clearly / suggestive of intention • Steps taken must themselves be sufficient to show offender’s intention to commit crime which he is charged with attempting
  11. 11. Mens Rea HELP LLB 104 11 One can be liable for attempting to commit a crime if one has the intention to commit the complete offence. Even if the full offence can be committed knowingly or recklessly, only will suffice for attempt to commit such offence.
  12. 12. Merrit v Commonwealth 12 “While a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of attempted to commit murder unless he has a specific intent to kill… When we say that a man attempted to do a given wrong, we mean that he intended to do it specifically; and proceed a certain way in the doing. The intend in mind covers the thing in full; the act covers it only in part…” HELP LLB 104
  13. 13. R v Mohan HELP LLB 104 13 The accused, in response to a police officer’s signal, slowed his car down, but then accelerated and drove the car at the police officer. The police officer jumped aside and the accused continued on his journey. He was charged with attempt by wanton driving to cause bodily harm to the police officer.
  14. 14. • The judge in his final direction to the jury, said that it had to be proved that the accused deliberately drove wantonly, realizing that such wanton driving would be likely to cause, unless interrupted by some reason, bodily harm to the police officer or that the accused was reckless as to whether such bodily harm would be caused by his wanton driving. It was not necessarily to prove an intention to cause bodily harm. • The accused was convicted, and he appealed. • The court allowed the appeal on the ground that the final direction by the judge was bad in law. • Not only did the judgment maintain the exclusion of ‘intent’ as an ingredient of the offence, but he introduced an alternative basis for a conviction which did not and could not constitute the necessary mens rea. It is well established that intent (mens rea) is an essential ingredient of the offence of attempt. HELP LLB 104 14
  15. 15. • Mens rea in offence of attempt is proved by establishing beyond reasonable doubt that the accused knew and correctly foresaw the consequence of his act unless interrupted would as a high degree of probability to be the commission of the complete offence. • Attempt is essentially a crime of mens rea, with the actus reus performing only a secondary role, only the clearest form of mens rea should suffice. • S 511 is silent as to species of mens rea required. HELP LLB 104 15
  16. 16. Mohd Yakub HELP LLB 104 16 “In order to constitute an attempt, first, there must be an intention to commit a particular offence”. Therefore, s 511 and other specific attempt provisions where no indication as to the requisite mens rea will be interpreted to require intention.
  17. 17. HELP LLB 104 17 S 307 and 308 – specifically state the degree of mens rea required – intention or knowledge. Does this mean the mens rea of attempted murder is the same as that of murder itself?
  18. 18. Actus Reus • The problem is to determine how much action is needed before one can be said to be attempting a crime. Eagleton • “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…” • Before an acts be classified as an attempt there must be, inter alia, an act towards the commission of the offence.
  19. 19. Arjun Singh v PP HELP LLB 104 19 The accused was charged with attempted extortion in that a letter demanding money and containing threats was found in a locked wooden chest at his house; 2 further extortionate letters were discovered at another house also occupied by the accused. Held: the letters found in the drawer and there was no evidence of any attempt to transfer them by way any means to the addressees.
  20. 20. • The mere act of writing and detaining a letter is not an attempt to commit extortion but at the most a preparatory step towards the commission of that offence. • The gist of the offence of extortion is putting another person in fear of an injury and similarly to support a conviction for attempted extortion the intended extortioner must have done some act with this intention. • Therefore the conviction quashed. HELP LLB 104 20
  21. 21. Abhayanand Mishra v State of Bihar • The A was convicted of an attempt to cheat. He had applied to Patna University for permission to sit for an exam as a private candidate. • He had falsely represented as a BA degree graduate and had been teaching in certain school. In support of his application, attached forged certificates. • The university’s authorities accepted the A’s statement and gave permission and wrote to him asking for remission of the fees and 2 copies of his photograph.
  22. 22. • He furnished these and an admission card for him was dispatched. When the untruth of his representations was discovered he was prosecuted. He appealed against his conviction. • Held, dismissing the appeal on the ground that the facts proved that the A had go beyond the stage of preparation for the commission of the offence of cheating. • Attempt to commit an offence, begin when the preparations are completed, and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence.
  23. 23. • The A not only sent an application but also followed it up by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the university did issued the admission card. • The preparation was complete when he had prepared the application and the moment he dispatched it, he had entered the realm of attempting to commit the offence of cheating. • He did succeed in deceiving the university but failed to sit the exam because something beyond his control took place.
  24. 24. Padala Venkatasami • Held that the preparation of a copy of an intended false document together with the purchase of stamped paper for the purpose of writing that false document and the securing of the information about the facts to be inserted in the document, were held not amount to attempt to commit forgery because the accused had not, in doing these acts, proceed towards an act towards the commission of the offence of forgery.
  25. 25. PP v Kee Ah Bah • The A was acquitted on a charge of an attempt at fraudulent evasion of export duty. He had hidden the tin-ore in his car. • He left the immigration check point at JB causeway and approached the customs check point. • When the car was about ten yards from the check point, a custom officer signaled to the A to stop. • The A reversed and made a U turn and escaped back to JB. The car was discovered shortly afterwards still containing the tin- ore. • The prosecution appealed against the acquittal. Held, the acquittal was set aside and set for re-trial.
  26. 26. • The trial judge held that he has the intention to commit the offence when he made secret compartment in the car, the obtaining and loading of the tin ore into the car and driving up to the immigration check point to present his travel documents. • As to the gap which lies between the immigration check point and the custom check point meant to facilitate those travellers on vehicle who in good faith change their mind about leaving, or who has no proper travel documents and are ordered by the immigrations officer not to leave the country. • Whether or not the offence reaches the border, as in this event the Resp would have got over the customs without declaring the goods.
  27. 27. State of Maharashtra v Mohd Yakub • Customs officers arrested the accused at the midnight when he stopped his jeep near a bridge at a creek and started removing silver ingots from the vehicle. • At the same time the sound of the engine of a mechanized se-craft from the side of the creek was heard by the officers. • The accused gave a false name and address. He was convicted for attempting to smuggle silver ingots.
  28. 28. • However, the additional session judge acquitted him. • The high court upheld the acquittal. The prosecution appealed to the Supreme Court. • Held, allowing the appeal on the ground that the intention of the accused to export the silver from India by sea was clear from the circumstances . • They were taking the silver ingots concealed in the two vehicles under cover of darkness.
  29. 29. • They had reached close to the sea- shore and had started unloading the silver there near a creek from which the sound of the engine of a sea-craft was also heard. • Beyond the stage of preparation, most of the steps necessary in the course of the export by sea had been taken. • The only step that remained to be taken towards the export of the silver was to load it on a sea-craft for moving out of the territorial water. • But for the intervention of the officers of law, the unlawful export of the silver would have been consummated.
  30. 30. Oi Be Kee v PP • The accused was charged with attempted theft. • Police officers spotted the accused tampering with a motor car. • The accused was seen trying to open the vehicle’s nearside door, with a piece of cloth and a bunch of keys. • At the same time, the accused was looking around, presumably to ensure no one was around. • After a short while, the police officers stopped him.
  31. 31. • Held, convicted the accused on the ground that it was beyond doubt that the accused had the intention of committing the said offence, otherwise, he would not have confessed of attempting to steal. • The fact that he had a piece of cloth with him which ordinary person would not ordinarily carry it with him. • It was view that the insertion of the key into the key slot of the car was a direct act done towards the commission of the offence.
  32. 32. • From the above cases the following general propositions seem to emerge:- 1. The accused’s action must be proximate to the complete offence; he must be beyond the stage of preparation. 2. The accused must do some acts towards the commission of the offence. 3. Actions are proximate to a completed offence when they are reasonably close to the commission of the offence but: a) The accused act need not be the last but one act towards the commission of the offence; b) It is irrelevant that the accused still has time to change his mind. 4. Actions were proximate when they revealed, with reasonable certainty, the intention of the accused to commit the crime. HELP LLB 104 32
  33. 33. PP v Zainal Abidin • The accused was charged with attempted rape. He lay on the top of the complainant with the intention of penetrating her but abandoned his plan when he was unable to obtain an erection. He did not remove his trousers. • Held that the accused did attempt to penetrate the girl and that the act which took preparatory of the offence, namely by lying on the top of the girl, with his expressed intention of having sexual intercourse are sufficient in law to constitute an attempt to rape.
  34. 34. Harichandra Narayah Khardape • The accused was spending the night with the complainant and the family. • He entered the kitchen where the complainant and her children were sleeping, bolted the kitchen door from inside, extinguished the lamp and made advances to the woman. • He denuded himself below the waist and attempted to remove her blouse and sari. • A scuffle ensued; the complainant shouted for help and was rescued by neighbors. • Held, the accused still in preparatory stage.
  35. 35. Actus reus under s 307 & s 308 • The accused must have done the last act necessary for him to achieve his objective. • If yet further action were required, then there would be no question of his having committing the requisite act that if cause death because that act, without more, could not cause death. • Refer to the Illustration
  36. 36. Om Prakash v State of Punjab • The accused ill treated and deliberately undernourished his wife causing her health deteriorate. • He intentionally starved her and prevented her leaving the house. • She was denied foods and used to be given gram husk mixed with water. • Once she nearly escaped but was caught, dragged back inside the house and was severely beaten. • 2 months later she manage to escape and obtain help.
  37. 37. • The accused was convicted of attempted murder and appealed against his conviction. • The court had dismissed the appeal on the ground that the intervening fact thwarted the attempt of the A to commit the murder of the victim was her happening to escape from the house and succeeding in reaching the hospital and thereafter securing medical treatment.
  38. 38. • The accused was convicted of attempted murder and appealed against his conviction. • The court had dismissed the appeal on the ground that the intervening fact thwarted the attempt of the A to commit the murder of the victim was her happening to escape from the house and succeeding in reaching the hospital and thereafter securing medical treatment.
  39. 39. White • The accused, who was indicted for the murder of her mother, was convicted of attempt to murder her. • It was held that the accused had put 2 grains of cyanide of potassium in the wine glass with the intent to murder her. • It was, however, argued that there was no attempt at murder because “the act of which he was guilty, namely, the putting of poison in the wine glass, was a completed act and could not be and was not intended by the A to have the effect of killing her at once; it could not kill unless it were followed by other acts which he might never have done”
  40. 40. • This contention was repelled, and it was said: “There seems no doubt that the learned judge in effect did tell the jury that if this was a case of slow poisoning the A would be guilty of attempt to murder. We are of opinion that this direction was right, and that the completion of attempted completion of one of a series of acts intended by a man to result in killing is an attempt to murder although this completed act would not, unless followed by the other acts, result in killing. It might be the beginning of the attempt, but would nonetheless be an attempt”.
  41. 41. Impossible Attempts
  42. 42. Introduction • In understanding the law on this it will be useful to employ the following common law classification:- 1. Physical impossibility 2. Legal impossibility 3. Impossibility through ineptitude
  43. 43. Physical Impossibility • This is where it is physically impossible for the accused to commit the crime, whatever means he adopted. • E.g.: he intends to steal from a safe; he breaks into the safe, but it is empty; there is nothing for him to steal.
  44. 44. Legal Impossibility • This is where the accused has done everything he means to do but in fact, and unknown to him, what he has done does not amount to a crime. • E.g.: he intends to steal an umbrella but unknown to him, the umbrella he takes turns out to be his.
  45. 45. Impossibility through ineptitude • This where the crime is impossible in the circumstances because of the accused's ineptitude, inefficiency or his adoption of insufficient means. • E.g.: he tries to breaks open a safe with a short crowbar, but the short crowbar is too weak to open the safe.
  46. 46. English law position • There could be no criminal liability for impossible attempts in either of the first two categories above. • There could, however, be liability for an attempts that was impossible because of the ineptitude of the accused. • The rationale of this approach is that when a crime is physically or legally impossible to commit the accused can never get close enough to the crime to satisfy the actus reus of attempt.
  47. 47. • Impossibility through ineptitude, on the other hand, the crime is not actually impossible; the accused can break into the safe; he simply need to fetch and use a stronger short crowbar. • What is the position in Malaysia? • S 511 clearly indicates that there can be liability for attempting the physically impossible. • Refer to Illustration (a) and (b) of s 511.
  48. 48. Munah bt Ali v PP [1958] • The accused, trying to procure an illegal abortion, inserted an instrument into a woman’s vagina with a view to thereby causing a miscarriage. • Unknown to the parties, the woman was not in fact pregnant and thus it was impossible to cause her to have miscarriage.
  49. 49. • Held, dismissing the appeal on the ground that the evidence clearly showed that it was the intention of the A to bring about a miscarriage and she could not have made the attempt unless she believed the complainant to be pregnant. • If the complainant was not pregnant, then the failure of the attempt was due to the factor independent of the A herself. • She is exactly in the same position of the illustration under s 511 even though these illustration speak of attempts to commit a different type of offence.
  50. 50. Ashgarali Pradhania • The accused was charged with attempting to cause a miscarriage, but there was no evidence to show that either of the two- substance administered to the woman was an abortifacient. • The accused was acquitted on appeal. • The court held that there was no attempt to cause a miscarriage because the drug which was administered was harmless but it is implicit throughout the judgment that s 511 and the principles embodied in the Illustrations are wide enough to cover a case where an act is done towards the commission of an offence against s 312, regardless that the complete offence cannot be committed by reason of some fact independent of the person who seeks to commit the offence.
  51. 51. Queen Empress v Mangesh Jiva’ji • It was held that the inept person would not be guilty of an attempt only if his or her plan simply could never succeed under any circumstances as opposed to where it could not succeed on this particular occasion only.
  52. 52. PP v Zainal Abidin b. Ismail • Roberts CJ: • The act…must be proximate… with the offence… there can be an attempt where the failure to convict the offence is due to “ineptitude, inefficiency or insufficient means on the part of the defendant”. • Applying this test, I find that notwithstanding the he failed to penetrate the girl by reason of his inability to obtain any erection, D4 did attempt to penetrate the girl…(and he is guilty of) an attempt to rape.
  53. 53. R v Francis Cassidy • The accused pointed loaded uncapped gun (believing it was capped) at his superior officer with the intention of murdering him. • He was about to pull the trigger when the gun was pushed up and he was prevented from doing so. • Held: in the present case although the act was done with the intention to causing death and was likely to belief of the prisoner to cause death; yet in point of fact it could not have caused death, therefore, does not come within section 307.
  54. 54. Awadesh Mehto v State of Bihar • The accused drew a loaded pistol and pointed it at P but before he had time to shoot the pistol, it was snatched from his hand and he was arrested. • Held: it is clear that act which is punishable under s 307 must be an act which is itself capable of causing death…in the present case till he fires he does not do any acts towards the commission of the offence and once he fires, and something happens to prevent the shot from taking effect, the offence under s 307 is made out.
  55. 55. • From the above case it seems relatively clear that once the gun is fired, liability will follow. • A fired gun is capable of causing death. • It is irrelevant that in the circumstances death would not actually have resulted or indeed was impossible.