Criminal Law and Procedure
ATTEMPTS and DOUBLE
JEOPARDY
Attempts
• s 535: Attempts to commit any offence a
misdemeanour
– s 536: punishment-generally half substantive
offence
• s 538: if desist of own motion reduced by half again
• s 4 : Definition of Attempt
• Elements
– [mental element]
• 1) intention to commit the offence
Attempts cont
– offence is “punishable act or omission” s 2
– Actus Reus Physical elements
• 2) begins to execute intention by means adapted
to fulfilment
• 3) manifests intention by overt act
• 4) does not fulfil intention so as to commit offence
Attempts cont
– Element 1): “intention” to commit the offence
• distinguish offences without element of intention eg
Rape and Assault
– Element 2): begins to put intention into
execution by means adapted to fulfilment
• Getting past preparation
– Proximity vis a vis Unequivocality
Attempts
– “last act” test (proximity)
– Chellingworth
– Edwards
– unequivocality test
– Williams; Savins
• act is a step towards the commission of the offence
• act cannot reasonably be regarded as having any
purpose other than the commission of the offence
– manifestation -by some observable act
• although act need not in fact be observed by anyone
– 4) does not fulfil intention so as to commit
offence
– unnecessary to prove does not fulfil intention-Barbeler
– can voluntarily desist from carrying out offence and still
commit the offence-Savins
– can technically commit both the offence and an attempt to
commit it-Barbeler
Attempt cont
– 4 Provisos to Section 4
– Immaterial if
• does all that is necessary
• whether complete fulfilment is prevented by acts
independent of will
• whether desists of his own motion
• circumstances render impossible
Attempts cont
• Factual vis a vis legal impossibility
– Britten v Alpogut
– R v English
• “objective innocence” of acts irrelevant
• focus is on the mind of the accused-does the
accused intend to commit an offence known to
the law of Queensland ie a “punishable act”
Double Jeopardy
• Section 17: Former conviction or acquittal
– If any of 4 rules in section available IS A
DEFENCE to a charge of any offence
– Explained in O’Halloran v O’Byrne
Double Jeopardy
• Rule 1 -where tried and CONVICTED upon AN
INDICTMENT on which MIGHT HAVE BEEN
convicted of [present offence]
• Rule 2-where tried and ACQUITTED upon AN
INDICTMENT on which MIGHT HAVE BEEN
convicted of [present offence]
– THUS THESE RULES LOOK TO THE
ALTERNATIVES OPEN ON AN INDICTMENT IN
THE PAST
– THEY DO NOT APPLY TO PARTIAL VERDICTS IN
THE PAST!
Rule 1
• Past trial in 1997
– Tried and convicted
upon AN indictment
• What were the
alternative verdicts
that were open on this
indictment??
• Was 2000 charge
amongst them? If ‘yes’
THEN YOU MIGHT
HAVE BEEN
CONVICTED OF IT!
• Present Trial in 2000
• Charged with an
offence
– Defence is raised
under Rule 1 because
MIGHT have been
convicted of it in 1997
because it was an
alternative verdict!
Rule 2
• Past trial in 1997
– Tried and acquitted
upon AN indictment
• Exactly the same as
Rule 1 ie Look at
alternatives on this
indictment to see if
charge in 2000 was an
alternative
• Present Trial in 2000
– Charged with an
offence
– If present charge was
an alternative in 1997
is a complete defence
Double Jeopardy cont
• Rule 3-already been acquitted on indictment OF
AN OFFENCE of which might be convicted ON
THE PRESENT INDICTMENT
• Rule 4-already convicted OF AN OFFENCE of
which might be convicted on the PRESENT
INDICTMENT OR COMPLAINT
– THUS THESE RULES LOOK TO THE
ALTERNATIVES OPEN ON THE PRESENT
PROCEEDINGS
– UNLIKE THE PREVIOUS RULES THESE RULES
WILL APPLY IF A PARTIAL VERDICT ON THE
PAST INDICTMENT
Rule 3
• Past trial in 1997
– Tried on indictment
and ACQUITTED OF
AN OFFENCE
• Present trial in 2000
– Look at all the
alternatives available
on the PRESENT
INDICTMENT
– If amongst these is
the OFFENCE were
acquitted of in 1997
this is a complete
DEFENCE to the
present charge
Rule 4
• Past Trial in 1997 or
sentence
– Convicted of an
offence either by jury
OR by a Judge on a
plea of guilty OR by a
Magistrate either after
trial or plea
• Present Trial in 2000
– Charged on indictment
(before jury) or
complaint (before
Magistrate)
• Look at any alternatives
available on the
indictment or complaint
– If previous conviction
amongst alternatives is
a complete defence
Double Jeopardy
• Finding the alternative verdicts on an
indictment-Two sources
– Source 1-Alternatives actually joined (written
on the indictment)-s 567 & 568 Criminal Code
– Source 2-Alternatives available in Chapter 61
of Criminal Code
• eg s575-circumstances of aggravation
• s 317-Doing GBH with intent
Double Jeopardy cont
• s. 576 Murder and Manslaughter-Note extends in the
case of motor vehicles to dangerous driving vide
328B
• s. 578 Offences of a sexual nature
• s 581 Offences of Dishonesty
• s 583 Attempts to commit always an alternative
Double Jeopardy
• General verdicts vis a vis partial verdicts
– O’Halloran va O’Byrne pp50-51
• eg Indictment charging count of rape: verdict “not
guilty”-general verdict
• eg Indictment charging i count of rape ii count of
assault with intent to rape and iii count of indecent
assault-verdict guilty of count iii but cant agree on
counts i and ii-This is NOT a general verdict it is a
partial verdict : R v Simpson
Double jeopardy
• Rule 5: Additional rule with respect to
summary offences when dismissed!
• S 700: May issue a certificate of dismissal which is
a bar to further prosecution for the same cause
• only available after hearing on the merits-Hay ex
parte Patane
– ie after a trial and the matter being thoroughly gone into
• applies to both simple offences and to indictable
offences dealt with summarily
Double Punishment
• s 16 Cannot be twice punished for the same
act or omission
– “same act or omission?”
•
•
•
•
unity of time and place-Hull
same punishable act -Gordon; c/f Tricklebank
common elements-Sheppard
identify single common acts as a matter of common
sense without excessive subtleties and refinements