CLARIFYING IMPOSSIBLE ATTEMPTS AND CRIMINAL CONSPIRACIES

• Published date: 01 December 2007
• Author: Stanley YEO LLB (Hons)(University of Singapore), LLM (Wellington), LLM, PhD, LLD (Sydney); Professor of Law, Faculty of Law, National University of Singapore; Adjunct Professor of Law, Southern Cross University, Australia.
• Citation: (2007) 19 SAcLJ 1
• Date: 01 December 2007

This article examines the conceptually difficult issue of impossibility in relation to the criminal law of attempt and conspiracy. It proposes a scheme to explain leading cases on attempting the impossible, and suggests the proper approach to be taken for cases involving impossible conspiracies.

I. Introduction

1 Impossibility is sometimes pleaded in answer to a charge of attempt, with the accused contending that the facts were such that it was impossible for him or her to complete the offence no matter how hard he or she tried. Similarly, persons charged with criminally conspiring to commit an offence could plead that what they had agreed to do was impossible to achieve so that the charge should be dismissed. These pleas of impossibility are not strictly defences requiring proof by the accused, and this is confirmed by their absence from Chapter IV of the Penal Code which provides for the General Exceptions. Rather, such pleas seek to negate an offence element by contending that the impossibility rendered absent an “attempt” or “conspiracy” to commit an offence. Accordingly, the prosecution must prove beyond a reasonable doubt that the attempt or conspiracy was in fact not impossible to achieve if the plea was put in issue.

2 The ensuing discussion will commence with impossible attempts, followed by impossible criminal conspiracies. It may be helpful to declare at the outset my view concerning the concept of impossibility as a ground of exculpation. It is that a proper appreciation of the concept and its place in the law of attempt and conspiracy will lead to the conclusion that impossibility does not exculpate an accused of criminal liability for attempt or conspiracy.

II. Impossible attempts

3 The primary Penal Code provision on attempt is s 511. The provision does not itself cover the issue of impossibility, leaving it to the illustrations accompanying the provision to do so. The provision and illustrations read as follows:

Whoever attempts to commit an offence punishable by this Code or by any other written law with imprisonment or fine or with a combination of such punishments, or attempts to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code or by such other written law, as the case may be, for the punishment of such attempt, be punished with such punishment as is provided for the offence:

Provided that any term of imprisonment imposed shall not exceed one-half of the longest term provided for the offence.

Illustrations

(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.

(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.

It is observed that s 511 does not clearly stipulate the requirements needed to make a situation one of impossibility, nor does the provision reveal whether there may be types of impossibility which would acquit rather than convict an accused of an attempted offence. The task has been left to our courts to clarify these matters. The dearth of local cases on impossible attempts necessitates reference to Indian case authorities.

A. Historical and theoretical perspectives

4 It is clear from the illustrations to s 511 that the Code framers regarded people who would have completed an offence but had failed due to some physical (that is, factual) impossibility, to be criminally liable for the attempted offence. The English common law takes the opposite view in providing for physical impossibility to exculpate an accused charged

with the attempted offence.1 Accordingly, English common law authorities have no role to play in the discussion of impossible attempts under the Penal Code.

5 The issue of impossibility needs to be situated within the underlying rationale of punishing people for attempted offences. Attempts are inchoate (or embryonic) offences where no harm to society has been done but which society regards as necessary to deter people from trying to commit crimes which they would have achieved but for some extraneous or accidental reason. Since criminalising attempts impinges on the freedom of individuals who have not actually caused harm, the scope of criminal liability for attempts must be kept within narrow limits.2 The relevance of this observation for impossible attempts is that stringent requirements are needed which attest to a high degree of blameworthiness on the accused’s part before he or she should be convicted and punished for conduct which a court has determined to be impossible of causing harm.

B. Impossible, inept and incomplete attempts

6 The concept of impossibility has conventionally been categorised into physical and legal impossibility. In cases of physical impossibility, some extraneous factual circumstance makes it impossible for an accused to achieve the result, whatever means he or she adopts. The illustrations to s 511 are examples of this type of impossibility. The consequence of physical impossibility is that the accused is liable for the attempted offence. In cases of legal impossibility, the result the accused intends, if achieved, will not be the crime he or she believed would be committed. An example is where the accused had taken his own umbrella from a stand thinking that it belongs to another person.3 Whether the accused should be guilty of attempted theft is very much dictated by public policy.4 On one view, the accused should not be guilty because it would

amount to punishing him for merely having a guilty intention. The opposing view is that the accused should be punished to promote deterrence. The former view is subscribed to by the English common law5 while the latter view has been adopted by the Singapore High Court.6 For completeness, there is a third type of case where the non-criminality of the intended offence prevents the accused from being convicted of any offence. An example is where a foreign tourist has sex with a 19-year-old Singaporean girl erroneously believing that it is a crime to do so on account of her youth.7

7 A person may also have failed to accomplish the completed offence because of his or her own ineptitude. An example is where a person tries to break open a safe with a jemmy which is too small for the task.8 Whether or not the accused is liable for the attempted offence will depend on the proximity9 of the accused’s conduct to the completed offence. Liability will be made out if the accused’s conduct was “immediately and not remotely connected with the crime”10 or was shown to have “embarked on the crime proper”.11 Cases involving ineptitude are not really cases of impossibility because there were means available to the accused to complete an offence recognised by law.12 Thus, in the example given earlier, it was possible for the safe to be prised open with a larger or stronger jemmy, the use of explosives or by a safecracker.

8 It may be observed that cases of impossible attempts and inept attempts have in common the fact that they constitute “complete but imperfect attempts”13 in that the accused has done all that he or she had set out to do. This category of attempts is to be contrasted with “incomplete attempts”14 where the accused does some but not all the acts he or she had intended to do. For the purposes of this discussion, these

latter types of cases clearly do not involve the concept of impossibility and no more needs to be said of them.

C. A proposed scheme

9 An examination of the few available cases on impossible attempts shows that the law is in a highly unsatisfactory state with no less than three, perhaps more, distinct approaches to determining whether or not an accused should be held criminally liable. One approach is based on the distinction between physical impossibility (liable) and legal impossibility (not liable).15 Another makes liability dependent on whether the attempt failed because of a factor independent of the accused (liable) or whether it was due to the accused’s own conduct (not liable).16 A third approach is to distinguish between conduct which would normally result in the intended offence (liable) and conduct which would not under any circumstances (not liable).17

10 At the risk of being criticised for creating yet another approach, it is submitted that clarity and coherence in the law will be achieved were our courts to adopt a particular form of definition of impossible attempts. Better still would be for legislature to enact a provision which embodies this proposed scheme. With this in mind, the scheme is cast in terms of a Code provision:

A person is guilty of attempting to commit an offence if all of the following conditions are met:

(1) he or she intended to commit the offence;

(2) he or she did everything that was required for the completion of the offence; and

(3) the completion of the offence was made impossible by facts not known to him or her or because of circumstances beyond his or her control.

Explanation

The person’s conduct must have been physically capable of completing the offence but for the impossibility stated in condition (3)

Condition (1) merely adopts the current law regarding the fault element required of attempts generally.18 A proper understanding of condition (2) is critical to the operation of the scheme, justifying the inclusion of the explanation for further clarification and...