Consultation Paper on Inchoate Offences - Law Reform Commission

man carried away his own umbrella does not imply he attempted to steal anumbrella, though he may have had this intention. Additional evidence –perhaps a confession he believed he was taking someone else‟s umbrella –changes the scenario by providing an insight into his state of mind whichmay well persuade us that he was trying to steal an umbrella (what isattempted) rather than merely carrying away his own umbrella (what is donein an attempt). This distinction is used by Bebhinn Donnelly to reach thekey conclusion that “[an actor‟s] attempt is fixed by [that actor], whatactually happens in the attempt or indeed contrary interpretations of what itis that [the actor is] attempting cannot retrospectively alter its substance.”2.148 Another key advance in theorising about impossible attempts is torecognise the unhelpful nature of the concept of impossibility. 199 In a veryreal sense all attempts, looking back on them, were impossible attempts.Where an actor has shot at another and the bullet has missed by a matter ofinches we can say that in the circumstances (the gun aimed slightly askew) itwas impossible to commit murder. Impossibility does not differentiatewhich attempts are criminal and which are not because it is present in themall. Additionally, the phrase “attempting the impossible” does not makesense since by definition an actor who attempts something believes it ispossible, otherwise there would be no point in attempting it and to do sowould be irrational. Of course, we can think of examples where somebodytries to do something believing it is impossible. This may be rational: anauthor trying to write 10,000 words in a day in the hope that reaching forbeyond their capacity will help them achieve their capacity. We canquestion whether such a person is really attempting to write 10,000 words;perhaps in truth they are attempting to write as many words as they can.2.149 As for the problem of the subjectivist approach leading tocriminalisation of the (seemingly) harmless voodoo practitioner and otherhopelessly inept attempts, this problem should not be thought fatal for thesubjectivist approach because these kinds of cases are wholly exceptional.They are unlikely to be detected, and given the requirement of mens rea, thevoodoo practitioner would have to really believe in the efficacy ofvoodoo. 200 Such an actor might be most appropriately processed as criminalbut excused on the basis of extreme irrationality or insanity. Perhapscriminalisation is appropriate since the voodoo practitioner might turn to199200Donnelly “Possibility, Impossibility and Extraordinariness in Attempts”(forthcoming).Smith “Attempts, impossibility and the test of rational motivation” in Gower (ed)Auckland Law School Centenary Lectures (Auckland Legal Research Foundation1983) at 25.68