Consultation Paper on Inchoate Offences - Law Reform Commission

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