Criminal Law and Procedure

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!

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 1

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 Rule 2

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

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 3

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 Rule 4

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

Criminal Law and Procedure