UCR 2622: Criminal Law II - Tutorial 3 – Attempt (Week 4)

1) “How the line between attempt and preparation is drawn cannot be stated in the
abstract; it is the result of a visceral reaction by different judges. In some types of
crime the courts seem to circumscribe the law of attempt very narrowly; in others they
give it a somewhat broader meaning.”

Critically discuss the above statement with reference to the tests adopted by the courts
and with reference to case laws and authorities.

The statement suggests that the line between attempt and preparation is not clearly
defined and may vary depending on the individual judges' interpretation of the law. This is
particularly true in certain types of crime where the courts may adopt a narrow or broad
interpretation of the law of attempt. The law of attempt is an important aspect of criminal
law that seeks to punish individuals who have taken steps towards committing a crime but
have not completed the offence. The line between preparation and attempt is not always
clear-cut, and it is often up to the courts to determine whether an individual's actions
constitute an attempt to commit a crime or merely preparation.

The Penal Code (PC) has not specifically defined the act of attempt, and thus, by
referring to the case of State of U v Ram Charan, the court has given the definition of
attempt. It was outlined that attempt refers to any intentional act done by a person towards
the commission of an offence but the actual commission of the offence failed due to
circumstances apart from the volition of the person who commits such act. If a person has
done an act for the purpose of committing an offence, but he failed before he could commit
the actual offence not because of his personal will to abandon the commission of the offence
or of his changing of mind, he is said to have attempted to commit an offence. Besides, in
the case of Queen v McPherson, it was explained by Copen CJ that attempt is “something
that falls short of the commission of an offence”, which means the actual offence has not
been completed.

While no specific provision has been provided to criminalize the attempt of an

offence, the principle provision penalizing a specific offense shall be read together with
Section 511 of PC, which creates offence for attempted acts. (Principle Offence must be
referred to) In this provision, it is stated that any person who attempts to commit any
offence that is punishable with imprisonment, or with fine or with both by the Penal Code or
by any other written law, or any person who attempts to cause the commission of such an
offence, or any person who does any act in the attempt towards the commission of such
offence, his act of attempt shall be punished with the punishment provided for the offence
intended to be committed if there is no specific punishment being prescribed by any
provision under the Penal Code or the written law.

Attempt and preparation must be differentiated, where it is necessary for the accused
to have gone beyond the stage of preparation but is yet to reach the stage of actual
commission of the offence. In the case of Sagayam v State of Karnataka, the court outlined
three stages in a commission of an offence, which begins with the stage of forming the
intention to commit the offence. The second stage is the preparation stage, and the third
stage is the attempt of the accused towards the commission of the offence. If the attempt
stage fails, no offence is committed but the accused will still be liable for attempting to
commit the offence. The main difference between the stage of attempt and preparation is
their proximity to the commission of the offence, where the stage of attempt is more closely
connected to the commission of the offence. It must be noted that mere preparation does not
amount to an attempt as it is not sufficiently proximate to the actual commission of an
offence. Once preparation has been completed, the subsequent step taken by the accused
with the intention to commit the offence will amount to an attempt.

There are mainly three tests that have been developed to determine whether an act
done by the accused is sufficiently proximate to the commission of an offence in order for
such act to constitute an attempt, and not mere preparation, which the tests are the proximity
test, the equivocality test, and the last act test. (These tests’ ultimate goal is to determine the
proximity of the act)

Firstly, one of the most commonly used tests is the proximity test, which considers
how close the individual came to completing the crime. This test takes into account factors
such as the individual's intentions, the nature of the offence, and the extent of their
preparations. If the individual's actions were sufficiently proximate to the completion of the
crime, they may be charged with attempted offence.

The second applicable test is the equivocality test, in which actions revealed with
certainty the intention of the accused to commit the offence. (consider whether got intention
during committing act and consider surrounding circumstances) can easily prove both mr
and ar)

State Maharashtra v Mohd Yakub

PP v Kee Ah Bah [1979] 1 MLJ 26

Another test used by the courts is the last act test, which considers whether the
individual has performed the last act necessary to complete the crime. For example, if
someone is caught attempting to break into a house with a crowbar, they may argue that they
were merely preparing to commit a burglary, and had not yet taken the last act necessary to
complete the offence. However, the courts may still find that the individual has committed
an attempt if they had taken sufficient steps towards committing the crime.

In conclusion, the line between attempt and preparation is not always clear-cut, and it
is often up to the courts to determine whether an individual's actions constitute an attempt to
commit a crime or merely preparation. The courts have adopted various tests to make this
determination. The approach taken by the courts in determining whether an individual has
committed an attempt may vary depending on the nature of the offence and the individual
judge's interpretation of the law. (conclude the three tests, which one broad/which one
narrow)
 How to answer Essay Questions

 General Structure:

1. Intro

- define attempt (based on cases)

2. Content

3. Conclusion

 Definitely Come out in finals (may be problematic)

- In answering problematic quesiton which involves attempt, must first identify the PRINCIPLE
OFFENCE (the offence that is considered to be committed if it is successfully achieved)

- ex: If someone attempts to commit theft, first refer to S.379 (principle offence), then read tgt
with S.511 .

- But if there are specific offences that already include the Attempt , ex: S.307 (Attempt to
Murder) , S.308 (Attempt to commit Culpable Homicide), no need refer to S.511.

- Then go into the 4 elements:

a) Mens rea : Intention (for general principle offences)

*bur for specific offences which ady inclove attempt, just follow the mr provided.

* ex: S.307 (attempt to murder) : mr is either intention/knowledge

b) AR (Tests)