Attempted Offences (NT)
Under NT law, a person can be charged with attempting to commit a criminal offence if they try to carry out the offence with the intention of completing it. This is because a person to tries to commit an offence is seen as almost as morally culpable as one who actually commits the offence. As such, a person who is found guilty of attempting to commit an offence is liable to the same maximum penalty as a person who had completed the offence and can rely on the same defences. This article deals with attempted offences in the Northern Territory.
Section 43BF of the Criminal Code Act 1983 governs attempted offences in the NT. Under that provision, for a person to be found guilty of an attempted offence, their conduct must have been more than merely carrying out acts preparatory to the commission of the offence. In other words, a person is not guilty of an offence only because they start to prepare to commit the offence; they are guilty only if they make an attempt to carry out the offence.
A person can be found guilty of an attempted offence even if the offence they are attempting to commit is impossible. For example, a person could be found guilty of attempted unlawful entry even if the building they attempted to enter could not be accessed in the way they were trying to do.
A person can be found guilty of an attempted offence even if they actually committed the offence attempted. This may occur where there is insufficient evidence to prove the actual commission of the offence. However, if the person is found guilty of an attempted offence, they cannot later be found guilty of the completed offences – for example, when further evidence emerges.
Section 43Bf also sets out some exceptions to the rule that a person can be found guilty of an attempted offence. While a person can be found guilty of aiding or abetting an offence, a person cannot be found guilty of attempting to aid or abet an offence. Neither can a person be found guilty of an attempted offence on the basis of joint commission, or by proxy.
Defences to attempted offences
Under section 43BF, any defence that applies to an offence also applies to an attempted offence.
A person charged with attempted murder could rely on the defence of self-defence if their conduct was done in response to a perceived threat to themselves or to another person and was reasonable in the circumstances as they perceived them.
A person charged with attempted sex without consent could rely on the defence of consent if they believed on reasonable grounds that the complainant was consenting to sex.
A person charged with attempted stealing could argue that they honestly believed that they had a legal claim to the item that they attempted to steal.
Proving attempted offences
A charge of attempting to commit an offence is often very difficult to prove unless the accused has made admissions. This is because proving such an offence involves proving that the accused intended to do something that they did not, in fact, manage to do. For this reason, in many cases where a person is charged with an attempted offence, the matter will eventually resolve with the accused pleading guilty to another lesser offence.
For example, where a person is charged with attempted murder and there is evidence that they seriously injured the victim, but no evidence (or insufficient evidence) that they intended to kill them, the prosecution may decide to accept a plea to the lesser offence of causing serious harm rather than trying the accused for attempted murder and potentially failing to secure a conviction.
In another example, a person may be charged with attempted sex without consent based on evidence that they grabbed the victim in the street and pulled them to the ground. In this case, if there is no evidence that any actual attempt to sexually assault the victim was made, the prosecution may choose to accept a plea to a lesser charge such as aggravated assault, rather than take the matter to trial where the accused would likely be acquitted.
In such a situation, an accused person may make a strategic decision that it is in their interests to take the matter to trial and try to secure an acquittal rather than agreeing to plead guilty to an alternative charge. There are many issues to consider in this situation and legal advice should always be sought at an early opportunity.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.