An attempt to commit an offence NSW

This article aims to examine the crime of attempt in the context of the New South Wales Crimes Act 1900 (NSW), including the elements of the crime and possible defences.

Any individual who attempts to commit an offence is subject to the penalty provided by that offence under Section 344A of the Crimes Act 1900 (NSW). Further, this section stipulates that persons charged with attempting to commit serious indictable crimes will be convicted as if they had committed those offenses.

Types of Attempt

There are two types of attempted crimes: complete attempts and incomplete attempts. Under inchoate crimes, an attempt can take either form: complete attempts or incomplete attempts.

If an individual takes all the steps to commit a crime but is unsuccessful, they are considered to have made a complete attempt. For example, a person who takes every step to break into a residence is unsuccessful due to the inability to pick up the lock.

Essentially, an incomplete attempt is distinguished from a full attempt in that an incomplete attempt refers to a situation in which a person cannot perform the necessary actions to commit an offense, such as attempted break-ins but cannot reach the door or lock.

When a person makes only an incomplete attempt, it is often difficult for the court to determine whether or not he or she is guilty.

What the Prosecution Has to Prove

In order to convict a person of an attempted crime, the prosecution must prove the elements of the crime. Failure to show the presence of these elements may result in the case being dismissed.

1. Intent

Generally, for most crimes, a prosecution must demonstrate that the defendant intended to commit a crime. The prosecution can sometimes prove intent simply by inferring that intent from the defendant’s conduct. The prosecution can, for example, simply claim that a person picked a lock to enter a house on camera with the intention of breaking in because they carried out this act.

2. Action

To prove an attempt, it is vital to demonstrate to the court that the accused took some steps towards committing a crime, regardless of the extent to which they went.

Defenses to an allegation of attempt

The defendant may raise several defences when charged with an attempt and these defenses may lead to his or her acquittal.

Some of these defences are:

1. Mistake of Fact

Using this defence implies that the defendant has committed the crime of attempt unintentionally. For example, someone might mistake another person’s car for their own and attempt to drive it home. However, claiming this defence requires that the defendant demonstrate the court that the error was genuine and any reasonable person could have committed the same mistake.

2. Involuntary Intoxication

A defendant who was involuntarily intoxicated negates the existence of intention since they weren’t in their right state of mind when they committed the crime. To claim this defence, you’ll need to prove that the intoxication wasn’t voluntary.

3. The Accused Took No Action

A person could claim this defense if they didn’t take any action regarding the crime. The court can’t find a person guilty of such an attempt based only on a person’s intention.

If this happens, the court might have no choice but to dismiss the case unless the prosecution can show the accused committed the crime.

4. Necessity

A defense of necessity can apply only when the accused committed the crime of attempt in order to prevent something terrible from occurring, such as breaking into a vehicle in order to transport a dying person to the hospital.

5. Duress or Coercion

If a defendant commits an act of violence or force without their free will, they may be able to claim this defence. This threat may include force or violence. It is, however, necessary for the accused to be able to convince the court that they believed the threat to be genuine and that they had no other choice but to surrender.

6. Voluntary Abandonment

Defendants who voluntary abandon crimes are those who take necessary steps to ensure that a crime does not occur. This might include informing the police. However, in order to claim this defence, the defendant must demonstrate that their actions prior to abandoning the crime did not result in the successful commission of the crime.

The court that hears cases concerning attempts

Criminal cases are handled by three courts in New South Wales. These are the Local, District, and Supreme Courts. The type of crime that a person attempted to commit determines the court to conduct the trial.

Local courts handle most civil cases and trivial offenses, while District and Supreme courts are primarily responsible for criminal proceedings.

The Local court will conduct the trial if the attempted crime is a less serious offense, while the Supreme court will likely conduct the trial if it is a serious offense such as murder, rape, etc.


An attempt penalty is designed to deter anyone from taking a step toward committing a crime. It is stated in the legislation that a person who attempts to commit an offence will be convicted as though they committed the crime. In light of this, the charge of an attempt should be taken very seriously. Therefore, no individual should disregard an allegation of attempt without seeking legal counsel.

How will an attempted offence appear on a Nationally Coordinated Criminal History Check

A conviction for an attempted offence in New South Wales will appear as a disclosable court outcome (DCO) on the results of a police record check.