Attempts and conspiracies are known as ‘inchoate’ crimes. This is because the full actus reus of the principal offence has not been reached. However, as far as an attempt is concerned, the ‘full’ actus reus of the ‘attempt’ must be there. Attempt was originally an offence under the common law of England. Attempt crimes are crimes where the defendant’s actions have the form of the actual nature of the crime itself, that is the actions must go beyond mere preparation. The essence of the crime of attempt is that the defendant has failed to commit the actus reus of the full offence but has the direct and specific intent to commit that full offence.
For an attempt to attract criminal liability, it must be more than just a preparatory act. Equally, the defendant must embark on the full crime but fail to reach the full circle of the actual crime.
According to the proximity test as per Lord Diplock in the case of DPP v Stone house, the defendant must have crossed the ordinary preparation and or reached a proximate point of no return. That is to say, the defendant must have reached that part of the series of acts, which if not interrupted, frustrated, or abandoned, would inevitably result in the commission of the intended offence.
Under the provision of section 380(1) and (2) and (3) of the penal code an attempt to commit an offence is by itself an offence, however for a crime of an attempt to be punishable the accused must have done some further acts than mere preparation. Several offences fall under this category including attempted rape, murder, fraud and so forth.
To constitute the offence of attempt, the following ingredients must be present that is intention to commit an offence, beginning to put an intention into execution by means adopted by its fulfillment, manifestation of intention by overt acts, but finally the person fails to fulfill the desired intention.
The problem with those crimes’ rests primarily on the question of actus reus and not mens rea because the actus reus is normally difficult to determine as sometimes it’s hard to draw the line between those acts that are merely preparatory and those went and executing a plan, will always go through a series of steps to arrive at the intended conclusion. Also, another reason that make actus reus to be difficult to be determined is the fact that some aspects of the execution of the act will be too remote or removed from full offence, and this is evidenced in the following decided cases: -
R v Rukondo s/o Kamano, Accused was charged with attempted murder. There was evidence that accused and several others shot a shower of arrows at complainant and his companions in an attempt to recover meat which they believed complainant and his companions had taken from them. They shot from about 40 paces away. One of the arrows hit complainant in the buttock, causing a wound two inches deep.
It was held that (1) It was not satisfactorily proved that the arrow which hit complainant was shot by accused. However, accused and his company were all acting in concert and with common intention, and accused is therefore responsible for the injury even if he did not himself shoot the arrow. (2) In view of the distance from which the arrows were shot and the other circumstances of the case, accused was guilty of the offence of an act intended to cause grievous rather than attempted murder. The accused was then convicted of the former offence.
The case of R v Haruna Ibrahim, in this case the accused was convicted of attempted rape (c/s 132). The evidence was that he had dragged the complainant to a ditch, placed his hand over the mouth and pulled down her underclothes while lying on her when he was observed by a passerby and fled. There was no evidence that at the time he fled, (he was) undressed. The acts of the accused did not constitute attempted rape, since he had not yet undressed. Rather, the acts constituted mere preparation for that crime. The acts however did constitute the crime of indecent assault (s. 135 (1) P. C.) A conviction for indecent assault was substituted under section 185 of Criminal Procedure Code.
Another case which can throw more light is the case of Mwandikwa Mutisya v R , where in this case the appellant was convicted by resident magistrate for attempted theft of articles which were locked in the car. The facts found by trial court were that the appellant tried to unlock the door of the car and for this purpose was after an entry had been forced, to steal articles in the car. The appellant was caught before he was able to open the door of the car. The substantial point taken on appeal was whether the attempt to open the car was in circumstances immediately connected with his attempt to steal since the offence occurred at night, the appellant might not have known exactly what was in the car or if he did, he might not have intended to steal all the articles in the car. It was held that, it was an act which was immediately and not remotely connected with the intended theft and it was an act which went far beyond preparation.
