Consultation Paper on Inchoate Offences - Law Reform Commission

of facts unknown to them, cannot possibly be achieved. A classic example isthe “missing booty” case where the defendant tries to pickpocket an emptypocket. It is impossible to commit theft in this situation, but the actor doesnot know this. In R v Brown 177 and R v Ring 178 pick-pocketing an emptypocket was held to be an attempt to steal. But earlier, in R v Collins, 179 theopposite was held. 1802.132 Another type of case is the “insufficient means” case, a centralexample is where a would-be burglar is caught trying to pry open a windowwith a jemmy that is entirely inadequate for the job. The House of Lordssuggested, obiter, in Haughton v Smith 181 that a criminal attempt can bemade out here. In R v Whyte 182 a conviction for attempted murder wasupheld where the defendant, intending to kill, had put poison in the victim‟sdrink, but the quantity of the particular poison was inadequate to causedeath. This case supports the proposition that impossibility due toinsufficiency of means does not preclude attempt liability.2.133 Another type of case is the “mistaken identity” case. An exampleis where a person shoots at a tree or a scare-crow mistaking it for someonehe intends to shoot dead. The much cited example of the man who takes hisown umbrella, thinking it belongs to another, fits this category. 183(2) Irish judicial comment on impossible attempts2.134 No Irish case on attempt turns on the issue of impossibility, butthere is dictum suggesting impossibility is no defence to a charge of attempt.In finding that the submission of fictitious birth reports in Sullivan wascapable of constituting an attempt, Walsh J stated that his finding would beno different even if it was impossible for Sullivan to have passed the 25 birthreport mark in the relevant contract year. 184 That is, even if it wasimpossible in the circumstances for Sullivan to obtain money by falsepretences she could still be convicted for attempting to do so. It is difficultto classify the Sullivan case as a type of impossibility because no particularreason why there might be impossibility was suggested.177178179180181182183184(1889) 24 QBD 357.(1892) 17 Cox CC 491.(1864) 9 Cox CC 497.See McAuley and McCutcheon Criminal Liability (Round Hall Press 2000) at 436-437.[1975] AC 476.[1910] 2 KB 124.Baron Bramwell‟s example from R v Collins (1864) 9 Cox CC 497, 498.[1963] IR 169, 196-197.63