Consultation Paper on Inchoate Offences - Law Reform Commission

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proximately connected with the intended offence, whether or not there wasany act unequivocally showing the intent to commit that offence”. 502.39 The English Court of Appeal‟s judgment in Davey v Lee 51 hasbeen seen as endorsing the unequivocal act approach. 52 A translation of theItalian Penal Code provision on attempt reads “Anyone who does acts aptlydirected in an unequivocal manner towards commission of a crime shall beliable for an attempted crime…” 53 In United States v Oviedo 54 it was saidthat the act must corroborate the mens rea:“[W]e demand that in order for a defendant to be guilty of acriminal attempt, the objective acts performed, without anyreliance on the accompanying mens rea, mark the defendant‟sconduct as criminal in nature. The acts should be unique ratherthan so commonplace that they are engaged in by persons not inviolation of the law.”The reason for this was evidential, that is, to prevent conviction of theinnocent on the basis of inferences from possibly unreliable testimony andthe history of the defendant.(I)Evaluation of the unequivocal act approach2.40 McAuley and McCutcheon identify the chief weakness of theunequivocality approach as its likelihood of leading to unmeritoriousacquittals. 55 The concern is that on a charge of attempting a specific offencethe defendant will escape liability if it can be demonstrated that his actionswere capable of being viewed as trying to achieve something other than thetarget offence specified in the indictment. Glanville Williams illustrated thispoint with the example of the man found kneeling beside a corn stack withpipe in mouth and matches in hand. 56 Even with independent evidence ofintent to burn the corn this man evades attempt liability since his act isequivocal: it is ambiguous between trying to set fire to the corn and trying tolight his pipe. This is how the pure unequivocality approach as developed50515253545556Section 72(3) of the Crimes Act 1961 (NZ). Emphasis added.[1967] 2 All ER 423.McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 418-419,Gordon Criminal Law (3 rd ed Green & Sons 2000) at 195.Translation of Article 56 of Italian Penal Code from Rocco, Maitlin and Wise, TheItalian Penal Code (Sweet and Maxwell 1978) at 18.525 F.2d 881 (5 th Cir.1976).McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 421.Duff discusses this example: Duff Criminal Attempts (Oxford University Press 1996)at 51. See also Dressler Cases and Materials on Criminal Law (3rd Ed ThomsonWest 2003) at 762.33
and subsequently abolished in New Zealand applies. Evidence of mens reain the form of a confession goes to establish mens rea only and is not to beused to help establish the actus reus.2.41 The test can be watered down, and thereby not allow so muchunmeritorious evasion of liability, by allowing independent evidence ofmens rea to resolve equivocality about the defendant‟s act. Thus, in light ofthe man beside the corn stack later admitting an intention to set fire to thecorn, his act is no longer equivocal. Rather, it can now be seen as anunequivocal act towards the target offence. Italian courts have taken thisapproach. 57 This approach has also been discerned in the English Court ofAppeal‟s decision in Jones v Brooks. 58 The defendant brothers had beenacquitted at trial of attempting to take and drive away a car without theowner‟s consent. They were not charged with attempted theft of a car; their“confession” disclosed only an intention to “borrow” a car in order to gethome. A police constable had observed one of them try without success toopen a locked Ford Anglia with unsuitable keys and then duck down whenhis brother keeping watch called out a warning. Later, one of the defendantsadmitted to police that they were seeking to borrow a car in order to drivethemselves home. The Court of Appeal accepted that if the expressedintention to borrow a car was ignored then the act of trying to enter the carwas equivocal between a number of possible aims including theft or sleepingin the car. 59 But, according to the Court, the expressed intention should beconsidered as a relevant circumstance which can help reveal what aim theotherwise equivocal act was directed towards. 602.42 As McAuley and McCutcheon recognise, the Court in Jones didnot really apply the unequivocality test, or at least what the Court applied isnot the distinctive unequivocality test developed in Salmond‟s writings.Rather, the Jones Court‟s watered down version of unequivocality is really aproximity test. The very fact that that the Court had to use the defendant‟smens rea to render his attempt-act unequivocally directed towards achievingthe target offence reveals that the Court considered the attempt-act equivocalwhen viewed on its own. 61 The Court of Appeal in Jones do indeed say theactus reus must be “sufficiently proximate” to the target offence and thuslead one to wonder what is remarkable about claiming that Jones applied aproximity test rather than an unequivocality test? The answer is that thereare two reasons why Jones could or would be seen as taking the5758596061See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 420.(1968) 52 Cr App R 614.(1968) 52 Cr App R 614, 616, per Parker LCJ.(1968) 52 Cr App R 614, 617.McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 420.34
Page 1: Consultation <stro
Page 4 and 5: Law Reform CommissionTHE LAW REFORM
Page 6 and 7: Law Reform CommissionLaw Reform Res
Page 8 and 9: Law Reform CommissionContact Detail
Page 10 and 11: TABLE OF CONTENTSTable of Legislati
Page 12: TABLE OF LEGISLATIONAbortion Act 19
Page 15 and 16: Lajoie v R [1974] SCR 399 CanLeigh
Page 17 and 18: R v O‟Brien [1954] SCR 666 CanR v
Page 20 and 21: INTRODUCTIONABackground to the proj
Page 22 and 23: 5. Inchoate offences do not exist i
Page 24 and 25: 11. Chapter 1 explores the nature o
Page 26 and 27: CHAPTER 1INCHOATE LIABILITYAIntrodu
Page 28 and 29: its pure relational form as an agre
Page 30 and 31: D(1) LegalityCriminal law theory en
Page 32 and 33: 1.16 Some textbook writers reverse
Page 34 and 35: one resulted in conviction by the j
Page 36 and 37: 1.30 Evident here is a principled r
Page 38: excusatory defences 51legitimate de
Page 41 and 42: codifying inchoate offences will be
Page 43 and 44: called “the proximity rule” to
Page 45 and 46: Appeal, was because more than one i
Page 47 and 48: accused for which she stood trial a
Page 49 and 50: defendant had progressed well beyon
Page 51: And it is costly to try - police an
Page 55 and 56: “proximate” was more like “ne
Page 57 and 58: providing, bluntly, that attempting
Page 59 and 60: unlawful entry of a structure, vehi
Page 61 and 62: drafted by James Fitzjames Stephen,
Page 63 and 64: 2.68 The Law Commission for England
Page 65 and 66: crime; (2) an overt act toward the
Page 67 and 68: (3) D commits an offence or an act
Page 69 and 70: the Court of Criminal Appeal has ap
Page 71 and 72: activity. Purposive activity is int
Page 73 and 74: a Working Party assisting the Law C
Page 75 and 76: consequences/circumstances distinct
Page 77 and 78: inchoate liability) because such pr
Page 79 and 80: Oireachtas has sole law-making powe
Page 81 and 82: either label could be applied to a
Page 83 and 84: 2.135 Perhaps Walsh J, when imagini
Page 85 and 86: subjectivist approach to impossibil
Page 87 and 88: man carried away his own umbrella d
Page 89 and 90: just to make it look like he would
Page 91 and 92: ii)Having an abandonment defence gi
Page 93 and 94: i) The would-be perpetrator had a c
Page 96 and 97: 3CHAPTER 3CONSPIRACYAIntroduction3.
Page 98 and 99: two or more persons involving resol
Page 100 and 101: 3.12 The People (Attorney General)
Page 102 and 103:
the Brighton Conspiracy Case 37 sta
Page 104 and 105:
Henchy J went on to state, obiter,
Page 106 and 107:
conspiracy is exempt from liability
Page 108 and 109:
Subsequently, in R v Anderson, 73 t
Page 110 and 111:
(b)(i)Non-criminal unlawfulnessTort
Page 112 and 113:
“[A]n agreement by two or more by
Page 114 and 115:
decency, which has an ancillary inc
Page 116 and 117:
where they will fall in.” The ice
Page 118 and 119:
abolishing the latter but not the f
Page 120 and 121:
G(a)Abandonment of a conspiracyThe
Page 122 and 123:
4CHAPTER 4INCITEMENTAIntroduction4.
Page 124 and 125:
approach to that of the common law.
Page 126 and 127:
(v)Incitement need not be directed
Page 128 and 129:
verbs used to describe a physical a
Page 130 and 131:
4.23 It is noted that while the act
Page 132 and 133:
direction. The analysis of criminal
Page 134 and 135:
(iii)Inciting non-criminal conduct4
Page 136 and 137:
encouragement or assistance will in
Page 138 and 139:
Convention on Human Rights. 75 Inci
Page 140 and 141:
conduct incited. This position was
Page 142 and 143:
5CHAPTER 5PROVISIONAL RECOMMENDATIO
Page 144 and 145:
(4) Impossible conspiracies5.21 The
Page 146:
The Law Reform Commission is an ind
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Consultation Paper on Inchoate Offences - Law Reform Commission

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