LAW 2599 Lecture Notes - Lecture 9: Lesser Included Offense, Absolute Liability, Murder 2
23 May 2018
School
Department
Course
Professor
ATTEMPTS
STEP 1: state principal offence
The principal offence is… (murder, abortion, manslaughter, theft/robbery, OAP (assault), rape). I will consider whether the PE
and FE are made out (go to relevant offence notes)
STEP 2: state if offence is completed/ not completed
If completed offence: an attempt can be an alternative verdict for a completed offence CLCA s 140 (superior courts) s 70B
(magistrates court).
If no completed offence: an attempt can be charged CLCA s 140 (superior courts) s 70B (magistrates court). The alternative
lesser offence of (below) may be appropriate. However, given the seriousness of the alleged offending, a charge for (and stigma
attached to) the attempt of the more serious offence is appropriate/ as there is no suitable alternative lesser offence
• Murder > cause harm
• Rape > indecent assault
STEP 3: Before proceeding, it must be established that the law of attempts applies to the particular offence
STEP 3.1: The presumption is that offences can be attempted s 270A(1) CLCA – subject to subsection (2), a person who attempts
to complete an offence (whether constituted by common law or statute) shall be guilty of attempting to commit the offence’
STEP 3.2: is the presumption rebutted? (rarely rebutted* - deal with quickly)
The presumption applies because it is not rebutted because it is not a statutory attempt, there is no statutory exclusion and it is
not a preoperatory offence. (offence) is a completed offence so does not fall into any of these categories prosecution can proceed
to charge the accused for attempted (offence); OR
The presumption does not apply because it is rebutted by reason of being a statutory attempt/ exclusion/ or preoperatory
offence. Thus, the prosecution cannot proceed on the attempted offence as there is no completed offence/ applicable alternative
charge, meaning the prosecution has no grounds and client is free to go.
• cannot attempt to complete a statutory attempt (cannot attempt to attempt to procure an abortion/ attempt to attempt
murder)
• Express statutory exclusion – s 144E CLCA cannot attempt identity theft
• Preparatory offences (cannot attempt to ‘going equipped’ – will apply where accused was at the scene ready to offend,
but did not perform any conduct related to the PE of the offence)
STEP 4: The elements of ‘attempt’ are not defined in the CLCA but are informed by common law
STEP 5: Fault element
• The fault element is not the fault element of the defence- rather, it is the intention to commit the completed offence
(recklessness as to completing will not suffice for an attempt) Giorgianni (FACT)
o Rape: according to the SA Supreme Court authority of Evans, attempted rape can be proven upon proof of
recklessness. Lowers the bar for proof of fault, however, as Evans was decided in 1987, before CLCA definition of
reckless indifference was introduced, it refers to common law definition of recklessness – ‘turning one’s mind to being
aware and acting anyway’- and is thus a high threshold. (apply to facts). Nonetheless, Evans conflicts with high court
rulings and has not been affirmed by the high court, so its authority is in doubt
• Attempts cover crimes of strict or absolute liability (which have no fault element) Gardener
STEP 6: Although intention has been made out, the conduct element must be satisfied for the attempt to be established (see below
for cases on robbery, rape and murder/ CLCA on att abortion/ manslaughter)
State physical element of offence (go to relevant offence notes)
• Rape = sexual intercourse (conduct) - s 5 CLCA broad definition - without consent (circumstance)
• Murder = causing (conduct) the death of a human being (result)
The Court has devised a series of tests to determine whether conduct can constitute an attempt. No single test is conclusive, it is a
Q of fact and degree left to the jury in each case.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The principal offence is (murder, abortion, manslaughter, theft/robbery, oap (assault), rape). I will consider whether the pe and fe are made out (go to relevant offence notes) Step 2: state if offence is completed/ not completed. If completed offence: an attempt can be an alternative verdict for a completed offence clca s 140 (superior courts) s 70b (magistrates court). If no completed offence: an attempt can be charged clca s 140 (superior courts) s 70b (magistrates court). The alternative lesser offence of (below) may be appropriate. Step 3: before proceeding, it must be established that the law of attempts applies to the particular offence. Step 3. 2: is the presumption rebutted? (rarely rebutted* - deal with quickly) The presumption does not apply because it is rebutted by reason of being a statutory attempt/ exclusion/ or preoperatory offence. Step 4: the elements of attempt" are not defined in the clca but are informed by common law.
