R v Irwin - [2006] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IRWIN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
30 March 2006
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT
Accused convicted of one count of aggravated robbery and one count of attempted aggravated robbery – Appeal against conviction for attempted aggravated robbery – Accused and two others demanded money from victim – Victim did not have any money at relevant time – Whether defence of “factual impossibility” open at common law – Defence of “factual impossibility” not open to accused – Haughton v Smith [1975] AC 476 not applicable – Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137(2), s 270A; Customs Act 1901 (Cth) s 233B; Criminal Attempts Act 1981 (UK), referred to.
Britten v Alpogut [1987] VR 929, applied.
R v Kristo (1989) 39 A Crim R 86, distinguished.
Haughton v Smith [1975] AC 476; R v Collingridge (1976) 16 SASR 117, not followed.
R v Donnelly [1970] NZLR 980; Anderton v Ryan [1985] AC 560; R v Shivpuri [1987] AC 1; R v Lee (1990) 1 WAR 411; R v English (1993) 10 WAR 355; R v Mai (1992) 26 NSWLR 371; R v Barbouttis (1995) 37 NSWLR 256; R v Prior (1992) 65 A Crim R 1; Baldock v Barnes (1993) 19 MVR 33; Guillot v Hender (1998) 102 A Crim R 397; Skelton v Collins (1966) 115 CLR 94; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; R v Brady & Smythe (2005) 92 SASR 135, considered.

R v IRWIN
[2006] SASC 90
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J: I agree that the appeal should be dismissed for the reasons given by Bleby J.
BLEBY J:
Introduction
This appeal seeks to raise, or perhaps to rely on what is said to be an existing defence to a crime of attempting to commit an offence, namely a defence of factual impossibility.
The appellant was charged with five offences committed in a southern suburb of Adelaide between 24 and 26 August 2003. Before the trial, the appellant pleaded guilty to one count of theft. He was then convicted by a jury in the District Court of two counts of common assault, one count of aggravated robbery and one count of attempted aggravated robbery.
The appeal relates only to the conviction of attempted aggravated robbery.[1]
[1] See Criminal Law Consolidation Act 1935, s 137(2) and s 270A.
The factual circumstances
Late in the afternoon of 26 August 2003, the appellant and two other male offenders, all three of whom were riding BMX bicycles, approached the 16 year old male victim who was waiting at a bus stop. One of the offenders asked the victim if he knew where a deal of marijuana could be obtained. The victim responded that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Irwin

Details

AGLC: R v Irwin [2006] SASC 90
Case: [2006] SASC 90
Decision Date: 30 March 2006

CaseChat Overview and Summary

The appellant was convicted of one count of aggravated robbery and one count of attempted aggravated robbery. The appeal was against the conviction for attempted aggravated robbery. The appellant and two others demanded money from the victim, but the victim did not have any money at the time. The issue was whether the defence of "factual impossibility" was available at common law. The court held that the defence was not available to the appellant. The court rejected the proposition that Haughton v Smith was applicable, noting that it had been widely criticised and had been superseded by statute in some jurisdictions. The court held that the concept of a defence of factual impossibility was flawed and had been resoundingly condemned by judges, legislatures and commentators alike in numerous jurisdictions. The appeal was dismissed.

The court observed that there was no ethical distinction between an offender who failed to complete a crime due to insufficient means and one who failed because of physical impossibility. The common law should reflect this. To allow a distinction between the two would be to endorse a technical, theoretical concept which produced unjust and inconsistent practical results. It would be contrary to common sense and would ignore community expectations that an offender who, with the requisite intention took sufficiently proximate steps towards the commission of a crime, should be held accountable for his or her actions. The court held that the appellant's conduct and intention were identical in both the completed and attempted robberies. It would be a bizarre and unconscionable result to hold the appellant guilty in the former case but not in the latter. The court held that the appeal should be dismissed.

The court concluded that the appellant was guilty of attempted aggravated robbery. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, in R v Brady & Smythe[29] the appellants were found guilty of attempted escape from prison. Metal bars had been removed from the walls of a cell and hidden. A perspex covering of the window had been removed and replaced so that it could be taken out. Two sheets of glass had been removed from the window. The bars that had been removed had been used to bend and damage other bars in the window, but the resultant hole was too small to allow a person to escape. The rejection of a no case submission was upheld. There were two competing hypotheses – one of attempted escape and one of attempting to bring contraband into the cell. It was open to the jury to find that there was an attempt to escape which was not successful. This was held to be not a case of physical impossibility but of inadequate means. Duggan J, with whom Perry and Sulan JJ agreed, also observed[30], in relation to the several categories of attempt described by Turner J in R v Donnelly[31] and refined in Haughton v Smith, as follows:Turner J’s categories should not be treated as exhaustive and, as Cox J pointed out in Kristo (at 93), Haughton v Smith was a controversial decision, particularly in the light of the result in that case. The law has since been amended in the United Kingdom and in some other jurisdictions so as to render physical impossibility irrelevant. However, as Cox J pointed out in Kristo, this Court has regarded Haughton v Smith as accurately stating the law applicable in South Australia.[29] (2005) 92 SASR 135.[30] Ibid at 141.[31] [1970] NZLR 980.Conclusion Despite a number of observations by members of this Court that Haughton v Smith represents the law in this State as to factual impossibility as a defence to attempt, there is no decision of this Court or of the High Court which applies that decision to a case of factual impossibility. The observations remain obiter dicta. More importantly, attempts to classify various types of attempt into particular categories has been shown to be wanting. The concept of a defence of factual impossibility is flawed and has been resoundingly condemned by judges, legislatures and commentators alike in numerous jurisdictions. There can be no ethical distinction between an offender who fails to complete a crime due to insufficient means and one who fails because of physical impossibility. The common law should reflect this. To allow such a distinction would be to endorse a technical, theoretical concept which produces unjust and inconsistent practical results. It would be contrary to common sense and would ignore community expectations that an offender who, with the requisite intention takes sufficiently proximate steps towards the commission of a crime, should be held accountable for his or her actions. In the case of the present appellant, had the facts been as he and his co‑offenders hoped them to be, that is, that the victim was carrying money, presumably the offence would have been completed. Assuming for a moment that the victim did have money, and that the commission of the robbery was interrupted by the arrival of a bus, allowing the victim to escape, on the application of Haughton v Smith the appellant would be guilty of attempted robbery on the basis that he failed due to insufficient means, but in the circumstances as they were in fact, he would be not guilty, despite the intention and conduct of the offenders in each case being identical. This would be a bizarre and unconscionable result.

Ratio Decidendi

Legal Principle Established

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