The Actus Reus in Criminal Attempts
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00336.x |
| Published date | 01 November 1955 |
| Date | 01 November 1955 |
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 ACTUS REUS
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” the~ry.~ 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.
In 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, “is 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 Law,
14th
ed.,
p.
82.
*
Salmond,
Jurisprudence,
10th
ed.,
pp.
387. 388.
*
Glanville Williams,
Criminal Law.
4
Barker
[1924]
N.Z.L.R.
865.
6
Barker (supra),
p.
874.
The
General Part,
p.
483.
6
op.
cit.,
p.
483.
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