Attempt and withdrawal 

An attempt is a complete offence in its own right. The accused has done enough to be punished even though the substantive offence was never completed, and the law's difficulty is locating the point at which preparation becomes criminal.

The conduct element: more than merely preparatory

Buying a weapon, surveying premises, waiting outside — these may all be preparation. The question is when conduct crosses into attempt, and the courts have used several formulations:

• More than merely preparatory, the statutory test in the Commonwealth Code (s 11.1)¹ and several state Codes. It is deliberately imprecise and leaves the question to the tribunal of fact.
• Proximity: the conduct must be sufficiently close to the completed offence, sometimes expressed as the last act the accused believed necessary.
• Unequivocality: the conduct, viewed on its own, must speak for itself as directed to the offence.

No single test is applied everywhere and they can produce different answers. Identify the governing formulation before applying it, and where the facts sit close to the line, argue both sides rather than asserting a conclusion.

The fault element

To convict of an attempt the prosecution must prove two things: the conduct element above, and intention. The fault element here is higher than for the completed offence. A person may be convicted of a substantive offence on recklessness where that is the specified fault element, but an attempt to commit it ordinarily requires an intention to bring about the result (for Commonwealth offences, the Criminal Code s 11.1 makes intention or knowledge the fault element of the attempt). One cannot attempt to be reckless.

This produces the counter-intuitive result that attempted murder requires an intention to kill, even where the completed offence of murder may be established on reckless indifference or an intention to cause grievous bodily harm.

Impossibility

Impossibility is generally not a defence. A person who tries to steal from an empty pocket, or who handles goods believing them stolen when they are not, may still be guilty of an attempt: the fault is present and the conduct is directed to the offence the accused believed they were committing. The Commonwealth Code says so expressly.

The exception is conduct that would not be an offence even if completed. Attempting to do something that is simply lawful is not an attempt at anything — the accused's mistaken belief that it was criminal does not create an offence.

Withdrawal

Withdrawal from an attempt is narrower than withdrawal from complicity. Once the conduct element is satisfied, the offence of attempt is complete, and a change of heart afterwards does not undo it — though it is plainly relevant to sentence.

Withdrawal therefore matters at the margin: where the accused abandons the enterprise before the conduct crosses from preparation into attempt, there is no offence to withdraw from. Where the accused is a party to another's attempt, the ordinary complicity rules on withdrawal apply, requiring timely and unequivocal communication and, where assistance has been given, reasonable steps to undo it.

Attempt and the completed offence

An accused cannot be convicted of both the attempt and the completed offence arising from the same conduct. Where the completed offence is proved, the attempt merges in it.

Attempt is usually available as an alternative verdict: a jury not satisfied that the substantive offence was completed may convict of the attempt on the same indictment, without a separate count. The availability of the alternative is statutory and should be checked, since it does not exist for every offence.

Penalty for an attempt is generally the same as, or a fixed proportion of, the penalty for the completed offence. Where the maximum is the same, the difference in culpability is reflected in the sentence rather than in the ceiling.

The other inchoate offences

Attempt is one of three inchoate offences, and a fact pattern often raises more than one:

• Conspiracy — an agreement between two or more persons to commit an offence, complete on the agreement being made together with an intention that it be carried out. It reaches conduct earlier than attempt, because no act toward commission is required beyond the agreement itself, though many formulations require an overt act by one party.
• Incitement — urging or encouraging another to commit an offence, complete whether or not the offence is committed and whether or not the person incited agrees.

Each is a distinct offence with its own elements. Do not describe an agreement as an "attempt" or an encouragement as "complicity" — complicity requires that the principal offence actually be committed, which is precisely what distinguishes it from incitement.

Offences with their own inchoate forms

Many statutory offences are drafted so that preparatory conduct is itself the offence — possession of a thing with intent, going equipped, making a document with intent to defraud, and the various preparatory terrorism offences. Where such a provision exists, the prosecution need not rely on attempt at all, and the difficult conduct question does not arise.

Look for a specific provision before reaching for the general law of attempt. It is often both easier to prove and the charge actually laid.

Applying this in a problem question

1. Identify the substantive offence attempted, because attempt is always parasitic on a defined offence.
2. Apply the governing conduct test for the jurisdiction, and where the facts are close, reason on both sides rather than asserting.
3. State the fault element as intention, and note where it exceeds the fault required for the completed offence.
4. Deal with impossibility expressly if the facts raise it, distinguishing factual impossibility from conduct that would be lawful if completed.
5. Address withdrawal only in relation to the point at which the conduct element was satisfied.

Self-check

• Have I identified which conduct test the jurisdiction applies?
• Have I required intention rather than importing the substantive offence's fault element?
• Have I distinguished factual impossibility from conduct that is simply not an offence?
• Have I recognised that abandonment after the attempt is complete goes to sentence, not liability?