Index. MISCARRIAGE, 268, ACCOMPLICES accomplice to attempt, attempt to aid and abet, counselling,

Transcription

1 Index ABANDONMENT abandonment going to elements of offence, 50 51, defence of abandonment arguments against, arguments for, availability Australia, Canada and England, civil law jurisdictions, 325 conclusion, general, South Africa, United States, Model Penal Code, factor in sentencing, , ABORTION see also PROCURING MISCARRIAGE, 268, ACCOMPLICES accomplice to attempt, attempt to aid and abet, counselling, ACTUS REUS as evidence of intent, 54 55, 90, 392 functions of judge and jury English versus Canadian position, perverse verdicts, questions of fact and law, 6 7, interaction with intent, 131 preparation versus attempt general, 5 6, 53, 95, indeterminate tests, 218 need for workable rule, 126, objective and subjective standards, 128, reliance on facts of case, 126, specific tests abnormal step, 216 causation, commitment, 215 common sense,

2 402 THE LAW OF CRIMINAL ATTEMPT conduct otherwise criminal, consummation, likeliness of, control, culpability otherwise required, dangerousness, discretion of court, equivocality, final stage theories last act, penultimate act, possibility of intervention, 172 probability of desistance, first stage theories commencement of execution, general, guidelines, , 215, , 394 indispensable element, proximity, , 198, 208, , reform proposal, substantial step, , 219, 221 AIDING AND ABETTING aiding and abetting attempt, impossibility of attempted aiding and abetting, ARSON, 130, 165, 185, 313, ASSAULT, 268, ATTEMPT BY OMISSION, , ATTEMPTED MURDER see MURDER ATTEMPT BREAKING AND ENTERING, 72 73, 233, 292, 313 BRIBERY AND CORRUPTION, CHARGING OFFENCES see INDICTMENT CIVIL LAW abandonment as defence, 325 general attempt provisions, 10 12, COMPARATIVE LAW, 10 12, , 155, , 325, CONDUCT see ACTUS REUS CONSPIRACY attempted conspiracy, conspiracy to do impossible, CORPORATIONS, , COUNSELLING AND PROCURING, CRIME PREVENTION and individual freedom, 43, as function of law of attempt, 15 19, as rational for preparatory offences, 20 28, 36 DANGEROUSNESS, 10, 22 26, 43 44, , DEFENCES see ABANDONMENT; IMPOSSIBILITY; PROVOCATION DEFINITION OF ATTEMPT Criminal Code general, 2 3, inadequacy of definition, 3 7, 124, , 392 development, 11 12, 378 English position, semantic confusion between legal and practical meanings, 23, 43, 47, 92 97, , , 273, 280

3 INDEX 403 ELEMENTS OF OFFENCE see ACTUS REUS; MENS REA EXTORTION, , FRAUD, , , , , 297, 332, 335 GENERAL STATUTORY PROVISIONS comparative law general, 10 12, influence of French Penal Code, 10, 161, influence of U.S. Model Penal Code, Criminal Code see also REFORM PROPOSALS incompleteness of definition, 5 6 proposals for abolition, HISTORICAL ASPECTS OF LAW, 9 13 HYBRID OR OPTIONABLE OFFENCES see INFORMATION AND INDICTMENT; SENTENCING IMPAIRED DRIVING, 290, 338 IMPOSSIBILITY ambiguity in Criminal Code, categories of impossibility lack of essential quality bungled bullet, false pretences, fraud where victim not deceived, ineffective means, 22, , inoperative weapon, 229, Lady Eldon s lace, offence not known to law, poisoning with harmless substance, non existence of something in external world absent ambush victim, 127, empty pocket, non existent narcotic, trying tree stump, ubiquitous umbrella, 85 86, vacuous womb, personal incapacity age, , 269 impotency, charging offence, conspiracy to do impossible, English solution, factual versus legal, , legislative solutions, objective approach, offences impossible to attempt, principle of legality, , 229n, 260, 270 punishment for attempting impossible, 22 receiving stolen goods general, , principle in Haughton v. Smith criticism, distinguished in Canada, general, overruled in England, 283, specific applications, reform proposals, , statutory interpretation, subjective approach, U.S. Model Penal Code, , 310 INCITEMENT, 293, 297 INDICTMENT,

4 404 THE LAW OF CRIMINAL ATTEMPT charging offence accomplices, 353 corporations and partnerships, general, hybrid offences, 365 indictable offences, summary offences, drafting indictment carefully, , 228, 233, 236, form, INDICTABLE OFFENCES see INDICTMENT INTENT see MENS REA JUDGE AND JURY, 6 7, 86 87, , 337 LAW REFORM see REFORM PROPOSALS MAGIC see WITCHCRAFT MANSLAUGHTER attempted, , 399 MENS REA complexity and ambiguity of law, 45 47, 86, conditional intent, , 350 definition by reference to substantive offence distinction between consequences and circumstances, general, intent alone not criminal, 9, 24 25, 47 55, negligence insufficient, 5, 59 62, objective and subjective approaches, 55 proof, recklessness attempted murder, concept of qualified intent, foresight of consequences, indirect intention, 86 intention to effect consequences, present state of law, 79 80, rationale, semantic fallacy in exclusion, reform proposals, specific intent attempted murder, 65, general, policy arguments, strict liability, 5, 79, terminology, transferred intent, MERGER common law doctrine, prosecution for attempt or full offence, 328, , 351 reform proposal, status of doctrine Canada, England, , 334 United States, 332, MODEL PENAL CODE see U.S. MODEL PENAL CODE MURDER ATTEMPT defences impossibility, , provocation, self defence, 362 definition, 73 74, , 383, mens rea, 57 63, 65 79, 80 83, 95, 99 reduction to attempted manslaughter, similar fact evidence, OMISSION AS ATTEMPT, ,

5 INDEX 405 OPTIONAL OR HYBRID OFFENCES see INFORMATION AND INDICTMENT; SENTENCING PERJURY, POISONING, 169, POSSESSION OF NARCOTICS, 101, 145n, , , 282 PREPARATION VERSUS ATTEMPT see ACTUS REUS PREPARATORY OFFENCES, 377, PROCURING MISCARRIAGE, , PROVOCATION as defence to attempted murder, reform proposals, 399 PUBLIC POLICY, 7 8, 19, 225, 246, 309 PUNISHMENT see also SENTENCING necessity and purpose, principles applied to attempt deterrence general deterrence, 39 32, 391 special deterrence, law enforcement, 138, 152, 281 protection of society, 29, 37, 42 public policy, 42 rehabilitation, retribution, risk of harm, rationale for punishing attempt, 15 19, 40, 49, theory general, objective approach dangerous as criterion, emphasis on welfare of society, necessity for harm, subjective approach emphasis on personal intent, 24 English Criminal Attempts Act, 26 Roman law, societal versus individual rights, 2, 12, 15, 27, 44, theoretical difficulties, 26 27, U.S. Model Penal Code, RECEIVING STOLEN GOODS see IMPOSSIBILITY RECKLESSNESS see MENS REA REFORM PROPOSALS abandonment defence, actus reus, evidential and procedural matters, impossibility defence, mens rea, merger doctrine, necessity for reform, 116, sentencing, RELATIONAL NATURE OF ATTEMPT, 3 ROBBERY, 38, ROMAN LAW, 10, 27 SENTENCING see also PUNISHMENT abandonment as mitigating factor, half measure rules, , 400 range of dispositions, , , 400 reference materials,

6 406 THE LAW OF CRIMINAL ATTEMPT SEXUAL OFFENCES, 41, 108, , 193, , , 314, , 366 SIMILAR FACT EVIDENCE, 54, SPECIFIC ATTEMPT OFFENCES, SPECIFIC INTENT see MENS REA STATEMENTS OF ACCUSED, 53 54, SUBSTANTIVE NATURE OF ATTEMPT, 3, 12 SUCCESSFUL ATTEMPTS see MERGER SUMMARY OFFENCES see INDICTMENT TESTS FOR ATTEMPT see ACTUS REUS THEFT, 37, 99, , 209, , 240, , 278, , , , 365 TREASON impossibility of attempt, 387 intent as substance of offence, U.S. MODEL PENAL CODE defence of abandonment, general attempt provision, impossibility, approach to, , 310 punishment for attempt, 25 substantial step test, , 201, , subjective viewpoint, 26 WITCHCRAFT,