Most criminal offences in New South Wales require the prosecution to prove a number of ‘essential elements’, or ingredients, beyond a reasonable doubt for a person to be found guilty.
For example, to establish the offence of sexual assault under section 61I of the Crimes Act 1900 the prosecution must prove that the defendant:
- Had sexual intercourse with another person;
- Did not have the other person’s consent; and
- Knew, was reckless or had no reasonable grounds to believe the other person consented.
Similarly, the offence of kidnapping under section 86 of the Crimes Act requires the prosecution to prove that the defendant:
- Took or detained a person;
- Did so without the person’s consent
- Did so with the intention of holding the person to ransom, committing a serious indictable offence or obtaining any other advantage
Clearly, the offences require a physical act to be performed – sexual intercourse in the case of sexual assault and taking or detaining a person in the case of kidnapping.
However, a ‘catch-all’ provision of the Crimes Act seeks to ensure that those who attempt to commit offences are subjected to the same maximum penalties as those who actually commit the offences.
Both New South Wales and Commonwealth legislation contain provisions which make clear that a person is guilty of an offence if he or she attempted but failed to commit it.
New South Wales
(1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.
(2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence.
The section makes clear that attempts are subject to the same penalties as though the offences had been committed, and that those who are convicted of ‘serious indictable offences’ – which are those that carry maximum penalties of at least five years in prison – are to be considered (for the purpose of any other legislation) to have been convicted of that offence.
It should be added, however, that it can often be difficult for the prosecution to prove guilt for an offence if the physical act it encompasses was never carried out.
In the context of Commonwealth legislation, which applies across Australia, section 11. of the the Criminal Code Act 1995 states that:
(1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A) Subsection (3) has effect subject to subsection (6A).
(4) A person may be found guilty even if:
(a) Committing the offence attempted is impossible; or
(b) The person actually committed the offence attempted.
(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.
(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.