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 he did not. The offender then demanded, “Give us your money” to which the victim replied that he did not have any. The offender said, “Don’t make me get off my bike”. He lay down his bicycle and again demanded money. The victim reiterated that he did not have any.
The victim gave evidence from which it can be inferred that the appellant was one of the offenders present when these demands were made. He said that he did not hand over any money to the offenders because he did not have any in his possession at the time.
Grounds of appeal
The first ground relied on is that the trial Judge “erred in law, by failing to direct the jury to return a verdict of not guilty on the charge of attempted aggravated robbery on the basis that the evidence before the Court could not prove the offence charged”.
The second ground complains of error in relation to the following direction given by the trial Judge in his summing up to the jury:
The direction that I give you is the fact that he did not have any money to be stolen, if you accept he had no money, does not affect the matter. The accused can still be guilty of the offence of attempted aggravated robbery even though there was no money there to be stolen.
Both grounds concern the issue of whether there is a defence of factual impossibility available to the appellant at common law. The appellant submitted that, on the basis of the evidence of the victim, there was no money which could have been taken and carried away and therefore it was not physically possible for the appellant to have committed the completed offence of aggravated robbery, regardless of the means he adopted. It was further submitted that, as a matter of law, where it is factually impossible to commit a particular completed offence, an accused cannot be convicted of an attempt to commit that offence.
Law of attempt – factual impossibility at common law
United Kingdom
The appellant’s argument has its roots in the House of Lords decision in Haughton v Smith,[2] particularly the reasons of Lord Hailsham LC in which His Lordship did not entirely adopt but did refer extensively to the analysis of the law of attempt in the judgment of Turner J of the New Zealand Court of Appeal in R v Donnelly.[3] In summary, the principle which can be distilled from Haughton v Smith is that attempts fall into at least three categories. In one type of case, the accused fails to complete the crime because of ineptitude inefficiency, because the means employed are insufficient or because he or she is somehow interrupted and unable to complete the offence (“insufficient means”). In another type of case, the accused does everything which he or she sets out to do, believing it to amount to a crime, when as a matter of law the actions do not constitute any offence (“legal impossibility”). In the third category, the accused is unable to complete the offence because, regardless of the means adopted, it would be physically or factually impossible to do so (“factual impossibility”). According to the decision in Haughton v Smith, only the first type of case, insufficient means, could properly lead to conviction for an attempt.
[2] [1975] AC 476.
[3] [1970] NZLR 980.
It is the third category, factual impossibility, which is said to apply in the case of the present appellant. On the application of what was said by the House of Lords in Haughton v Smith, the appellant could not be convicted of attempted aggravated robbery in circumstances where it would have been factually impossible to commit the completed offence.
Whether Haughton v Smith applies at all in this jurisdiction is a matter to be addressed. However, it is important to recognise that in the United Kingdom the decision has been subject to extensive criticism, including the suggestion that the broad analysis of the law of attempt in Lord Hailsham’s judgment went beyond what was necessary to determine the appeal on its facts.[4] In other words it was not a case of factual impossibility at all. On the English Law Commission’s recommendation,[5] legislation was passed in 1981[6] in an attempt to abrogate the effect of Haughton v Smith. That attempt was held to have been unsuccessful, at least in part, in Anderton v Ryan.[7] However, Anderton v Ryan was subsequently overruled and any residual effect of Haughton v Smith was finally buried by the House of Lords in R v Shivpuri.[8] The reasoning in Haughton v Smith was rejected even by Lord Hailsham LC who wrote the leading judgment in Haughton v Smith and by Lord Bridge, one of the principal authors of the judgment in Anderton v Ryan.
[4] For example see Glanville Williams, “The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes” (1986) 45(1), Cambridge Law Journal p.33.
[5] Criminal Law: Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement (Report No 102, 1980). This report was also highly critical of the reasoning in Haughton v Smith: Ibid at paras. 2.93‑2.96.
[6] Criminal Attempts Act 1981 (UK).
[7] [1985] AC 560.
[8] [1987] AC 1.
Australian Jurisdictions
The reasoning in Haughton v Smith has been expressly rejected in the majority of the Australian jurisdictions, most notably by the Supreme Court of Victoria in the case of Britten v Alpogut[9], but see also R v Lee[10] and R v English[11] (WA), R v Mai[12] and R v Barbouttis[13] (NSW), R v Prior[14] (NT), Baldock v Barnes[15] (Tas) and the Federal Court decision in Guillot v Hender.[16]
[9] [1987] VR 929.
[10] (1990) 1 WAR 411.
[11] (1993) 10 WAR 355.
[12] (1992) 26 NSWLR 371.
[13] (1995) 37 NSWLR 256.
[14] (1992) 65 A Crim R 1.
[15] (1993) 19 MVR 33.
[16] (1998) 102 A Crim R 397.
In Britten v Alpogut, the accused was charged with attempting to import a prohibited import contrary to s 233B of the Customs Act 1901 (Cth). He intended to and believed himself to be importing cannabis into Australia. However the substance which he in fact imported was not cannabis and furthermore was not a prohibited import within the meaning of the Customs Act.
It is questionable whether this would constitute an example of the second category of attempt I have identified in Haughton v Smith, namely “legal impossibility” rather than “factual impossibility” as is the case under consideration in the present appeal. Should the Court’s focus be on the fact that what was done was not in fact illegal, or that there was a mistake of fact as to the substance being imported? A difficult analysis is called for and the artificial categorisation of attempts in this manner demonstrates the impractical result of the decision in Haughton v Smith. In recognising this, both concepts of impossibility, legal and factual, were criticised by the Victorian Full Court in the judgment of Murphy J, with whom Fullagar and Gobbo JJ agreed.
It was the opinion of Murphy J in Britten that the decision in Haughton v Smith had shifted the emphasis away from the proper focus of the law of attempt, namely the intention of the accused. He said:[17]
Attempts are crimes because of the criminal intent of the actor. A man who intends to kill V, and who picks up a gun believing it to be loaded, and who points it at V and pulls the trigger is guilty of an attempt to murder V even if it transpires that the gun was not loaded. Why is this an attempt? Because if the facts had been as the actor believed them to be, he would have committed the intended crime; he intended to murder V, but failed because of a mistake of fact. He is punishable for an attempt, not because of any harm that he has actually done by his conduct, but because of his evil mind accompanied by acts manifesting that intent. The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over 16, or the pocket is empty, or the safe too strong, or the goods are not cannabis.
In Haughton v. Smith [1975] A.C. 476 however, the emphasis to be laid upon the guilty mind of the actor was forgotten. Instead, the emphasis was placed upon the issue whether, if completed, the acts performed by the actor would in law have constituted the crime intended.
Murphy J further observed:[18]
For some inexplicable reason the law of attempt became involved with the question whether or not the crime attempted could have been in fact accomplished by the accused.
It was thought by some that the accused could not be convicted of an attempt to commit a particular crime, when on the facts of the case it would not have been possible for the accused to commit the crime in question.
Immediately, there was confusion demonstrated between a relevant step in the commission of a possible crime and a relevant step in the commission of an intended crime, but one not capable of being accomplished.
[17] [1987] VR 929 at 935.
[18] Ibid at 933.
In resolutely rejecting the defence of impossibility as having any role to play in the common law of attempt in Victoria, the Court reiterated the longstanding and well-understood requirements necessary for conviction of an attempted offence of intent on the part of the accused coupled with sufficiently proximate steps towards the commission of the crime:[19]
At common law, if the intent was to commit a recognized and not an imagined crime, and the act done was not merely preparatory but sufficiently proximate, then at that stage an attempt to commit the recognized crime has been committed, and it seems to me it is not necessary to go further.
[19] Ibid at 934.
It is not necessary to analyse in detail the decisions of the courts in the other jurisdictions to which I have referred. Their effect is the same.
Thus, the position in most other Australian jurisdictions, is that the reason for the inability of the accused to complete the offence is an irrelevant consideration. There is no obligation to enter into an analysis and categorisation of the attempt in order to distinguish those which could not possibly, either legally or factually, be completed from those which, through insufficient means or interruption, are unsuccessful.
The Position in South Australia
I turn to consider the position at common law in this State. The appellant submits that this Court should follow the decision in R v Collingridge[20] in which, it was argued, Haughton v Smith was, at least ostensibly, applied. In that case the appellant introduced the bared end of a live electrical wire into the water in a bath whilst his wife was kneeling in it. The wire did not come into contact with her body. She felt a tingling sensation, screamed and the appellant pulled the wire out. His wife was unharmed. The scientific evidence adduced was to the effect that the current carried by the wire was not capable of killing Mrs Collingridge or even causing her serious harm so long as she did not touch the wire. However, it if had come into direct contact with her body whilst she was “earthed” by means of touching some conductive part of the bath, e.g. a tap, she may well have been killed. On this basis, all members of the Court determined that the attempt failed because of insufficient means, not because of factual impossibility. The directions to the jury were correct and the conviction was upheld.
[20] (1976) 16 SASR 117.
At that time the High Court had held that it was not, as a matter of law, bound by decisions of the House of Lords.[21] However, Windeyer J observed:[22] “Where … there is no decision of the High Court on a question that arises in some other Australian court and a decision of the House of Lords is directly in point, the court which is called upon to decide the question will no doubt follow the decision”.
[21] Skelton v Collins (1966) 115 CLR 94 at 104, Kitto J; at 137-139, Windeyer J. See also Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, McTiernan J at 122; Menzies J at 148-9.
[22] Ibid at 139.
It was no doubt for this reason that all three judges in Collingridge felt bound to apply Haughton v Smith to the extent that they were required to in order to decide the appeal in Collingridge itself. As mentioned above, all three judges considered Collingridge to be an “insufficient means” case. The question of factual impossibility did not arise for decision. The direction given by the trial Judge was not in conflict with Haughton v Smith.
However, Bray CJ expressed serious doubt about the logic of distinguishing between different categories of attempts and in doing so, disregarding arguably equal moral culpability on the part of an accused who fails because of insufficient means and one who fails because of impossibility. He said:[23]
It must now be taken, therefore, that the would-be pickpocket who puts his hand into an empty pocket has not thereby committed attempted larceny.
I cannot forbear to comment on this curious situation. Let us take three men, A, B and C, each of whom intends to poison his wife by putting arsenic in her coffee. A puts in an insufficient and innocuous dose of arsenic, thinking it to be a sufficient dose. B puts in a dose of some harmless substance, say bismuth, believing it to be arsenic. C puts in bismuth, knowing it to be bismuth but thinking bismuth to be poisonous. Under the Haughton v Smith formulation A is guilty of attempted murder. It is, as I read the judgments, doubtful whether B is (see Haughton v Smith, at p 495) (though, in my view, he is) and even more doubtful whether C is. It is hard to see any ethical distinction between the three. It is also hard to formulate a definition which would catch C and would not also catch the man who thinks he can kill by witchcraft or by prayer. [Footnotes omitted]
[23] (1976) 16 SASR 117 at 121.
Bray CJ went on to postulate that Parliament might in the future seek to intervene, but no legislation has been passed in this State to remove any common law defence of factual impossibility, despite recommendations that that occur.[24]
[24] Matthew Good, Attorney-General’s Department, Discussion Paper “The Law of Attempt” 1991.
Bright J was critical of the test in Haughton v Smith which involved “physical impossibility”.[25] He indicated a preference for focussing on intent and proximity over categorisation of actions. Zelling J considered that Haughton v Smith was a case of legal impossibility and, as such, was correct. However, he declined to endorse the concept of a defence of factual impossibility:[26]
[I]t seems to me that it does not matter from the point of view of the common law whether the impossibility was due to an insufficiency of means or because the completed act was impossible factually whatever means were adopted. In my view, on either state of facts the jury may in a proper case convict of attempt. I say in a proper case because the ordinary rules as to attempt must apply. The accused must have reached a point in the series of acts which was sufficiently proximate to the completed act to constitute an attempt and the act if completed must have amounted to an offence at law; …
[25] R v Collingridge (1976) 16 SASR 117 at 128-30.
[26] Ibid at 139-140.
In summary, all three Judges were critical of the defence of factual impossibility sanctioned in Haughton v Smith, but were not required to depart from the House of Lords decision, given the facts in Collingridge. It cannot be said that the Full Court in Collingridge affirmed the now flawed position of the House of Lords on factual impossibility. The decision itself in Collingridge, not raising a question of factual impossibility, is no impediment to dismissing this appeal. Rather, the approach of all three Judges to the question of factual impossibility as a defence to attempt support the respondent.
R v Kristo[27] was a case of attempted false pretences by presenting a lottery coupon bearing the winning numbers for that particular draw where it was asserted by the accused that there had been a computer error in not recording that particular combination at the time of payment, although it had recorded nine other combinations on the same coupon. The evidence was that such a computer error was most unlikely but not impossible. The trial Judge rejected a submission of no case to answer because of factual impossibility, holding that that was no longer a defence in South Australia. The Full Court held that he was right to have rejected the submission but erred in doing so for that reason. Cox J, with whom King CJ and Millhouse J agreed, held that the Court was bound by R v Collingridge to apply the law as stated in Haughton v Smith. However, Cox J also held that the attempted false pretences failed in that case because of ineptitude or insufficient means, rather than because of physical impossibility. The adoption of Haughton v Smith was, once again, merely obiter. It is questionable whether Cox J correctly ascribed the view of a majority in R v Collingridge as endorsing factual impossibility as a defence to attempt. In any event, Cox J also recognised the possibility of the soundness of that view having to be reconsidered at a future occasion.[28]
[27] (1989) 39 A Crim R 86.
[28] Ibid at 94.

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.
It is the intention to commit the robbery, together with the actions manifesting that intention which the law regards as criminal. The reason for the accused’s failure to complete the crime is an immaterial consideration. Attempts will always be incomplete offences, and for the courts to embark on a difficult and artificial analysis and categorisation of attempts based on the reasons for their being incomplete is an unhelpful and unnecessary exercise. In this regard I respectfully adopt the views of Murphy J in Britten v Alpogut.[32]
[32] [1987] VR 929 at 935.
It is also desirable that the criminal law in the different jurisdictions of Australia, in so far as it relies on the common law, should not diverge from one another unnecessarily. This State would be at odds with almost every other jurisdiction if it were to apply Haughton v Smith in this case. It would also be at odds with other common law countries which have rejected the defence of factual impossibility. It would be applying a decision now long since regarded as bad law in the jurisdiction of its origin, the United Kingdom. While decisions of the House of Lords may still properly be regarded, in the absence of a decision of the High Court to the contrary, as having persuasive authority in this Court, the system of precedent does not require the application of obiter dicta of that House, even where it may have received obiter support from this Court, where the House of Lords itself has disowned it and it has no logical justification.
In my opinion the trial Judge’s direction was correct. The appeal should be dismissed.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Bleby J.