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18CR Attempts

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Attempts
Where an accused has in one way or the other initiated the commission of an offence but has failed to
complete it, he/she will be liable or an inchoate (incomplete) offence
Inchoate offences are punishable despite that they do not apparently cause any harm
The justification for punishment of incomplete offences is the apprehension (fear) of potential harm to
the community at large
A person who attempts to commit a crime cannot be excused of liability.
At common law, an attempt to commit an offence is in itself a crime
Attempts are of two kinds (R v Schoombie):
Complete attempts: The wrongdoer, intending to commit a crime, has done everything which he set
out to do but has failed in this purpose due to lack of skill OR of foresight, OR through the existence of
some unexpected obstacle
Incomplete attempts: The wrongdoer has not completed all that he set out to do because the
completion of his unlawful acts have been prevented by the intervention of some outside agency
CASE: R v Schoombie
Attempted arson incomplete attempt
Facts: The accused went to a shop in the early hours of the morning and poured petrol around and
under the door in such a way that the petrol ran under the door into the shop. He placed a tin
containing inflammable material (candle and piece of cloth dipped in petrol) against the door but
before he could strike the match a policeman surprised him. The accused was charged with attempted
arson and convicted by the trial court. On appeal:
Issue: Whether the facts proved the commission of a punishable attempt and not merely an act of
preparation
Court held: All the accused’s acts could properly be regarded as forming part of one continuous
operation of setting the building on fire and not mere acts of preparation for the subsequent setting
of the fire. The completion of his unlawful acts had been prevented by the intervention of some outside
agency. Court should lean towards giving a wide meaning to “commencement of the consummation” by
including in such consummation all the last series of acts which would constitute a continuous
operation, unbroken by intervals of time which might give opportunity for reconsideration.
Comment: There is a difference between acts of preparation and acts of execution (punishable)
COMPLETED ATTEMPTS
R v Schoombie: The wrongdoer, intending to commit a crime, has done everything which he set out to
do but has failed in this purpose due to lack of skill OR of foresight, OR through the existence of some
unexpected obstacle
TEST: Has the accused done everything he set out to do?
Assume X intends to shoot and kill Y. X fires a gun at Y but misses or only wounds him There is
sufficient unlawful conduct for attempted murder
There is no difficulty in ascertaining whether X’s conduct was sufficiently proximate to the killing of Y
to amount to an attempt
If X’s conduct is such that it is indeed sufficiently proximate to the killing of Y, X would be found guilty
of attempted murder
Only if the accused is NOT guilty of a completed attempt do you enquire into whether he is guilty of an
incomplete attempt
CASE: S v Laurence
Facts: The appellant was a journalist and was convicted of attempted to contravene the Suppression of
Communism Act 1950, which made it an offence to publish statements made by certain people. The
appellant had written an article based on an interview he had with Sobukwe but the appellant posted
the article to England to be published by a London newspaper. An unknown person intercepted the
letter and sent it to the SA police. It was argued on behalf of the appellant that his conduct remained
in the realm of preparation and did not become sufficiently closely connected with the ultimate
commission of the offence so as to constitute attempt. On appeal:
Court held: On a realistic, common sense view the role played by the appellant clearly constituted a
completed attempt which left no room for consideration of the distinction between acts of preparation
and acts of consummation. The acts were: visting Sobukwe, interviewing him, compiling the article for

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publication, writing letters to England, requesting the contact to submit them to the newspaper.
Appeal dismissed.
CASE: R v Nhlovu
Decided before R v Schoombie
Facts: Accused gave one Nhlana a packet containing arsenite of soda which he called medicine and
which he told Nhlana to put into the food of Jacob. However, Nhlana instead handed the poison to
Jacob himself. The accused was convicted of attempted murder.
Court held: The accused had been incorrectly convicted of attempted murder. The act of the accused
in handing the poison to Nhlana who had no intention of carrying out the instructions, “did not bring
him within measurable distance of the actual administration of the poison and therefore did not
constitute attempt.
There is no rule that prescribes that X be guilty of attempt only if he/she has taken the last step
possible in execution of the crime. If X decides to poison Y slowly, she is guilty of attempt even on the
first occasion when she puts poison in the food.
INCOMPLETE ATTEMPTS
R v Schoombie: The wrongdoer has not completed all that he set out to do because the completion of
his unlawful acts have been prevented by the intervention of some outside agency
In the case of a completed attempt the question of the proximity of the accused’s conduct to the
commission of the crime does not arise.
In incomplete/uncompleted attempts, the main problem is that of determining whether the accused’s
acts amount to or fall short of an attempt.
Is the test subjective or objective?
Subjective test
Starts and remains with the state of mind of the accused
If A intended to commit an offence he will be liable for attempt as soon as he does an act in
furtherance of that intention, no matter how remote the act may be from the completion of the time
The subjective test is only concerned with the moral guilt of the accused.
Objective test
Looks into the danger, that could have been caused, in relation to the interests of the community
The acts must have proceeded in a considerable way towards the commission of the crime in order to
attract liability.
In cases where the objective test is preferred, a distinction must be made between acts which are
remote from the commission of the crime and acts which are proximate to the commission of the
crime:
Acts which are remote from the commission of the crime are acts of preparation and they do not
entail liability even if accompanied by intention
Acts which are proximate to the commission of the crime are acts immediately connected with the
consummation of the completed crime (which amounts to attempt)
TESTS FOR DETERMINING PROXIMITY
Q: How does one determine where the preparation ends and where the attempt begins?
A: Depends on the facts of each particular case
CASE: R v Sharpe
Court held: An attempt is constituted by an act done with intent to commit the crime and forming part
of a series of acts which would constitute the actual commission, if it were not interrupted.
CASE: R v Schoombie
Court held: In the case of interrupted crimes an attempt to commit such crime is proved when the
court is satisfied from all the circumstances of the case that the wrongdoer, at the time he was
interrupted, intended to complete the crime and that he had at least carried his purpose through to
the stage at which he was commencing the consummation [of the crime]

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Attempts • • • • • Where an accused has in one way or the other initiated the commission of an offence but has failed to complete it, he/she will be liable or an inchoate (incomplete) offence Inchoate offences are punishable despite that they do not apparently cause any harm The justification for punishment of incomplete offences is the apprehension (fear) of potential harm to the community at large A person who attempts to commit a crime cannot be excused of liability. At common law, an attempt to commit an offence is in itself a crime Attempts are of two kinds (R v Schoombie): ❖ Complete attempts: The wrongdoer, intending to commit a crime, has done everything which he set out to do but has failed in this purpose due to lack of skill OR of foresight, OR through the existence of some unexpected obstacle ❖ Incomplete attempts: The wrongdoer has not completed all that he set out to do because the completion of his unlawful acts have been prevented by the intervention of some outside agency CASE: R v Schoombie Attempted arson – incomplete attempt ➢ Facts: The accused went to a shop in the early hours of the morning and poured petrol around and under the door in s ...
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