The Pitfalls in the Law of Attempt: A New Perspective

AuthorKenneth J. Arenson
DOI10.1350/jcla.69.2.146.63528
Published date01 April 2005
Date01 April 2005
Subject MatterArticle
JCL 69(2).doc..Arenson .. Page146 The Pitfalls in the Law of Attempt:
A New Perspective
Kenneth J. Arenson*
Abstract
The law of attempt is laden with some of the most hotly debated
and controversial issues in the criminal law sphere. This article provides a
critical and in-depth analysis of most, if not all, of the pitfalls that have
bedevilled this area of the law since time immemorial. In particular, the
discussion will focus on the type of mens rea required for an attempt, how
far an accused must progress toward the commission of the subject offence
in order to satisfy the actus reus component of an attempt, whether certain
offences are intrinsically incapable of being the subject of an attempt, and
whether the various courts and legislatures have agreed upon a univer-
sally accepted, coherent, and workable doctrine concerning the status of
'factual impossibility' as a defence to an attempt.
1. Introduction
Among the multitude of criminal offences recognised at common law,
perhaps none has engendered more uncertainty and controversy over
the years than the law of attempt. This is exemplified in the fact that
many of these problems remain substantially unabated, notwithstand-
ing the continual efforts of the judiciary to formulate viable solutions
through the incremental development of the common law. Although far
from exhaustive of these controversial areas, the most poignant include:
the type of mens rea that must be proved, how far the accused must have
progressed towards the completion of the intended offence in order to
satisfy the actus reus component; whether there are certain categories of
offences which, as a matter of law, cannot serve as a predicate for an
attempt; whether the doctrine of factual impossibility should be avail-
able as a defence to the crime of attempt; and whether one who has
committed an attempt should be absolved of liability if he or she volun-
tarily abandons the criminal enterprise before it has reached fruition.
The discussion to follow will focus on these and other issues in the
law of attempt, particularly those that have proven to be the most
intractable. In addition, the discussion will explore and critically analyse
the litany of unsatisfactory efforts by both the courts and legislatures to
redress these problems. It is important to emphasise that although the
piece does not profess to offer viable solutions to many of these prob-
lems, it does endeavour to analyse them from a somewhat different
perspective that is designed not only to facilitate a better understanding
of these thorny issues, but ultimately lead to reforms that are workable,
sound in principle, and long overdue.
* Associate Professor, Deakin University; e-mail: moe@deakin.edu.au. I would like to
thank my research assistant, Matthew Cookson, for making an invaluable
contribution to this piece.
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The Pitfalls in the Law of Attempt
2. Overview
There are two major areas of controversy surrounding the law of at-
tempts. The first concerns the mens rea component of the offence;
specifically, whether the mens rea needed to convict for an attempt is
satisfied by proving that the accused acted with the same mens rea
needed to convict for the subject (complete) offence. The second con-
cerns the actus reus component of attempts insofar as it relates to what is
often termed the ‘proximity rule’. Under this rule, the actus reus of
attempt requires the accused to have taken steps that are immediately
and not merely remotely connected with the commission of the subject
offence. Although the legislatures and courts have formulated a logical
and satisfactory answer to the mens rea controversy, they have thus far
failed to formulate any clear guidelines for determining how far the
accused must have progressed towards the commission of the subject
offence in order to satisfy the ‘proximity rule’.
3. The mens rea for attempt at common law
The seminal English case of R v Mohan1 is the classic authority regarding
the mens rea requirement of attempt. In Mohan, the accused was con-
victed of attempting to cause grievous bodily harm by wanton (reckless)
driving. The issue before the Court of Appeal was whether the trial judge
had misdirected the jury when he stated that this crime was established
if the jury was satisfied that the accused acted with the same recklessness
required by the complete offence.2
The Court of Appeal held that intent was ‘an essential element of the
offence of attempt’,3 and went on to examine the meaning of intention.
Intention was defined as a decision to bring about a certain conse-
quence,4 and was distinguished from the motive or emotion leading to
the action.5 The court opined that the direction of the trial judge could
only be upheld if intention was broadly construed to include reckless-
ness, meaning knowledge of the likely consequences of one’s actions.6
Finding no authority to justify this position,7 the court concluded that
while knowledge of the likely consequences of one's conduct does
constitute evidence of intention, it does not amount to intention in
itself.8 The court commented that the crime of attempt is a serious
offence that is often as morally culpable as the full crime,9 but as it is one
step removed from the commission of the intended offence, the courts
must not ‘strain to bring within the offence of attempt conduct which
1 [1976] QB 1.
2 Ibid. at 2.
3 Ibid. at 8.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid. at 10.
8 Ibid.
9 Ibid. at 11.
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The Journal of Criminal Law
does not fall within the well-established bounds of the offence’.10 Ac-
cordingly, the final direction of the trial judge was found to be bad in law
and the appeal was allowed.11
(a) Can recklessness constitute a sufficient mens rea for an attempt at
common law?

Although Mohan appeared to unequivocally reject the notion that any
mens rea short of an intention to bring about all the consequences of the
subject offence could suffice for an attempt, subsequent Australian
decisions raised doubts as to the continued vitality of this rule. One such
case was R v Evans.12
In Evans, an appeal to the Supreme Court of South Australia con-
cerned a trial judge’s direction regarding the crime of attempted rape.13
The trial judge directed that the mental element of attempted rape was
identical to that of the completed crime of rape; namely, that the accused
must have acted with knowledge that the alleged victim was not, or
might not (recklessness) be consenting to the sexual penetration.14 It
was argued that given the purposive nature of attempts, every element
of the crime must be intended, even if the complete crime could be
committed with a less culpable form of mens rea than intent (in this case
recklessness).15
In answering this question, the court could find no analogous author-
ity to guide it.16 A similar question had been posed in the case of R v
Zorad,17 which also concerned a charge of attempted rape. In Zorad, the
trial judge directed the jury that the mens rea for attempted rape included
‘a determination to have intercourse whether the prospective victim
was consenting or not’.18 It was argued that this amounted to reckless-
ness and, in accordance with Mohan, was not comprehended within the
mens rea of attempts.19 The trial judge, however, had clarified his state-
ment by going on to state that the accused ‘must have had the intent to
penetrate the prosecutrix without her consent’.20 According to Street CJ,
this qualification corrected any error that might have occurred in the
direction21 and made it unnecessary for the court to decide whether the
direction would have been incorrect had it included recklessness. The
court in Evans also distinguished the current case from those of
Whybrow22 and Mohan23 by drawing a distinction between the accused’s
state of mind as to the prohibited consequences of his or her conduct,
10 [1976] QB 1.
11 Ibid.
12 [1987] 30 A Crim R 262.
13 Ibid. at 263.
14 Ibid. at 266.
15 Ibid.
16 Ibid.
17 [1979] 2 NSWLR 764.
18 Ibid. at 773.
19 Ibid.
20 Ibid.
21 Ibid.
22 (1951) 35 Cr App R 141.
23 [1976] QB 1.
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The Pitfalls in the Law of Attempt
and the accused’s state of mind as to the existence of facts which render
his or her conduct criminal.24 Both of those cases concerned the mens rea
of intention with regard to bringing about one or more consequences
required by the definition of the intended crime, but neither concerned
the accused's state of mind vis- `a-vis the existence of facts rendering the
conduct in question illegal.25
The court stated that in order to satisfy the mens rea for attempt, the
accused must intend to bring about all the consequences required by the
definition of the subject offence, but the court could find no reason why
this principle should extend to the existence of facts rendering an act
criminal.26 In relation to the existence of facts which render conduct
criminal, the court further reasoned that it will suffice for the accused to
have acted with the same mens rea required by the definition of the
complete crime, even if this does not go as far as intention. The court
further reasoned that because lack of consent was not a consequence of
the actions of a would be rapist, but a fact that would render such actions
criminal should it be present, the requisite mens rea was identical to that
of the complete crime and a direction of recklessness was appropriate.27
The appeal was dismissed.
According to Evans, therefore, there are certain offences for which the
same mens rea that will suffice to convict for the subject offence will also
suffice for an attempt to commit the offence.28 It is noteworthy that
three years prior to...

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