Attempt Law PDF

ATTEMPT Why is attempt criminalised Preventing and deterring measures. Restricted task of the police force as intervention can only be done upon the completion of the c...

ATTEMPT Why is attempt criminalised Preventing and deterring measures. Restricted task of the police force as intervention can only be done upon the completion of the crime. Types of attempt 1. Specific attempt - § 307: Attempt to murder - § 308: Attempt to commit CH - § 309: Attempt to commit suicide - § 393: Attempt to commit robbery 2. General attempt - § 511 read with specific section 3. Attempt + full commission of crime - § 121: Waging or attempting to wage war against the YDPA Principle in R v Eagleton Actus reus of an attempt must be beyond preparation towards the commission of the offence in order to constitute attempt Principle in Merritt v Commonwealth Mens rea of a general attempt must be specific intent to commit the offence 1. Attempted theft - MR: Specific intent to commit theft 2. Attempted rape - MR: Specific intent to have sexual intercourse with a woman under any of the circumstances falling under the description Proximity test Whether the act of the accused is sufficiently proximate to the completion of the crime R v Taylor Accused detected lighting a match stick behind a haystack, nonetheless was not convicted of attempted arson as he was only found to be in possession of a match box which was merely preparatory. Last Act test Whether the act of the accused is the final act required in completing the offence Arjan Singh v PP Letters of extortion were found in the accused’s house, nonetheless he was not convicted for attempting to extort money as the court observed that the act of writing and detaining the letter remained in the stage of preparation and not the last act required to complete the offence. Cinematography test The court will guess what would be the next step taken by the accused  Ismail v PP The use of the words “Even if you are married, take it” coupled with the offer of RM5 is extremely vague to say certainly that there had been an invitation for sexual intercourse. It was not probable and uncertain for the court to preempt the subsequent action of the accused. Types of impossible attempt 1. Physical impossibility - It is impossible for the accused to commit the crime despite whatever means he adopts because of an absence of the subject matter. The impossibility is independent of him. 2. Legal impossibility - It is impossible for the accused to commit the crime because the law does not prohibit it. 3. Impossibility through ineptitude - It is impossible for the accused to commit the crime due to his own insufficiency. R v White. Indian position on impossible attempt No liability for impossibility through ineptitude. Malaysian position on impossible attempt Liability for all three types of impossible attempts. ABETMENT Difference between abetment and criminal For criminal conspiracy: conspiracy - Agreement in itself is an offence - Punishment for conspiracy does not govern the scope of abetment under § 107 - Wider in its application Types of abetment 1. Abetment by instigation [ § 107(a) ] - Wilful misrepresentation/concealment of a material fact to actively incite or procure the commission of an offence - Counselling, suggesting, encouraging, procuring - Raj Kumar v State of Punjab 2. Abetment by conspiracy [ § 107(b) ] - It is impossible for the accused to commit the crime because the law does not prohibit it. Elements of instigation 1. Communicated [Isaac Paul Ratnam] 2. An active suggestion [Raj Kumar] 3. Clear, objective and specific to the act that is abetted Elements of conspiracy 1. Between two or more persons 2. Conspiracy must be for the doing of the thing abetted 3. An act or illegal omission must take place in pursuance of the conspiracy NON-FATAL OFFENCES Ingredients of assault An act causing another person to apprehend infliction of immediate unlawful force @ threatening to use force - conduct crime A/reus: making of any gesture or preparation causing any person to apprehend the infliction of criminal force M/rea: intention to cause apprehension GESTURE PREPARATION Significant movement of Acts of devising and limb or body arranging the means necessary for the commission of an act Elements [ § 351 ] 1. Making of gesture or preparation to use criminal force 2. In the presence of another person of whom the gesture was made 3. Knew or intended for the gesture to cause the person to apprehend criminal force Threats of future violence are not covered There must be reasonable apprehension Tuberville v Savage Hand on hilt of sword “if it were not assizes time I will not take such language from you” – the words indicated that force was not going to be used Jashanmal Jhamatmal Accused put out his hand in a menacing manner Samy Vellu v Nadarajah Assault depends on reasonable apprehension - if there was no presence of ability to use force, there cannot be apprehension Ingredients of criminal force A/reus: causing motion either by change of motion or cessation of motion - result crime M/rea: Intention to use force with no intent to commit any offence @ knowing it to be likely to cause injury, fear & annoyance Change of motion can be done in: 1. Accused own bodily power 2. Disposing any substance 3. Inducing any animal to move Elements [ § 350 ] 1. Intentional use of force to any person causing a change of motion [Chandrika Sao & Hazari Lal v State of Bihar] 2. Use of force without the victim’s consent [ § 90 ] 3. Must be to commit offence or cause injury fear or  annoyance Mere use of force is insufficient Can cause gh/hurt but offence is ultimately dependent on intention or knowledge of accused ASSAULT CRIMINAL FORCE Mere gesture or preparation Actual use of criminal force to use criminal force Preparatory act towards Requires application of criminal force force Conduct crime Result crime Hurt vs grievous hurt HURT GRIEVOUS HURT § 319 “Hurt”: bodily pain, § 320 “Grievous Hurt”: disease or infirmity exhaustive list § 321: offence of voluntarily § 322: offence of voluntarily causing hurt causing grievous hurt Jashanmal Jhamatmal Falling under the list – Lorrina Bobbit: emasculation CH & MURDER Difference between CH & Murder Mayne (1901): difference lies in the degree of probability in the resulting death and risk to life FACTORS OF CONSIDERATION [Yeo Hock Seng]: 1. Means used: use of weapon > death probability 2. Part of body injured 3. Nature of blow: how the weapon was used 4. Nature of act: manner of act altogether 5. Number of injuries 6. Physical built & gender 7. Motive: bad relationship Types of homicide 1. Lawful homicide - Excusable homicide (infancy/accident) - Justifiable homicide (mistake) 2. Unlawful homicide - Murder  - Culpable homicide - CHNATM - Death by negligence - Attempted suicide Culpable homicide M/rea: 1. Intention to cause death 2. Intention to cause bodily injury likely to cause death 3. Knowledge that the act is likely to cause death Views pertaining to CH vs Murder Beaumont Mayne 299 = 300 @ murder is CH 299: likelihood 300: intention + higher degree of knowledge 1. CH Same actus reus but 2. CHNATM different mens rea Jashanmal Jhamatmal Falling under the list – Lorrina Bobbit: emasculation CHNATM #1: Provocation Accused loses control of his mind due to the actions of the deceased Elements [ § 300 ] 1. Provocation must be grave & sudden - no cooling off period 2. Accused is deprived of self-control 3. Killed the deceased or if killed another, mistake or accident (optional requirement) Courts reluctant to accept verbal insult as provocation Chong Teng v PP Accused went to Seremban to fight deceased – court said that provocation does not apply because “the provocation must go to you” #2: Private Defence Excessive private defence exceeding its bounds - when accused went beyond what was objectively necessary Elements [ § 300 ] 1. The accused must be exercising his right to private defence 2. Acted in good faith [ § 52 ]  Bhagwan Munjaji Pawade v State of Maharashtra Appellant was armed with an axe and gave three blows to the deceased. #3: Public Servant Elements [ § 300 ] 1. Accused is a public servant 2. Done for public justice 3. Acted in good faith [ § 52 ] Dukhi Singh v State of Allahabad Appellant was a constable chasing a suspicious man and shot a fireman who he suspected of protecting the suspect. Governed under the exception as there was no ill-will between himself and the deceased and his objective was for the advancement of public justice