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The “Completed Offence” and the Attempt—Some Problems in Criminal Law Interpretation
Published online by Cambridge University Press: 12 February 2016
Extract
There are two fundamental approaches to the problem of legal interpretation, one concentrating on the use of abstract concepts and their analysis by pure logic, and the second concentrating on policy considerations which underlie legal rules and the function they are to serve.
It cannot be denied that the “conceptual” method appears, at first glance, more “scientific” and precise as compared with the “functional” method, but in real fact it does not always ensure certainty and predictability. In many cases, the use of vague general concepts may lead to unexpected results, because the actual construction given to these concepts by the courts may vary according to the concrete facts involved (e.g. the concept of “proximity” in the law of attempt).
But even if, generally speaking, the “conceptual” method achieves a higher standard of certainty than the other method mentioned, one cannot overlook the fact that in some cases the use of the “conceptual” method may lead to injustice, or at least to a failure to achieve the social aims the legislator had in mind.
The importance of certainty and predictability, especially in criminal matters, is beyond dispute, but the weight given to this value in relation to other social values may differ from society to society and from time to time.
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References
1 One example of the use of these concepts as a key to the solution is to be found in A.-G. v. Chasin Ali (1962) 29 P.M. 84, and the authorities there cited.
2 See Prof. Feller, S. Z., “The Provisions Relating to the Typical Form of an Offence and their Application to its Derivative Forms of Criminal Conduct” (1967) 2 Is. L.R. 580Google Scholar.
3 Compare A.-G. v. Chasin Ali, supra at 86: “There is no contradiction between these two views, because the two courts were dealing with different problems and described the attempt to commit a crime as a ‘separate offence’ and an ‘independent offence’ while considering the attempt from different viewpoints.”
4 See secs. 29 and 30 of the Criminal Code Ordinance; Dr.Levi, J., “Notes on the Criminal Act in the Crime of Fraud” (1966–1967) 23 HaPraklit 502.Google Scholar
5 Abu Rabia v. A.-G. (1963) 17 P.D. 2913, 2924.
6 Sec. 29(d) provides that the punishment for an attempt, except for murder and offences whose punishment is death or life imprisonment, is one-half the punishment prescribed for the completed offence.
7 Williams, G., Criminal Law (2nd ed.) 616Google Scholar; A.-G. v. Trabulsi (1963) 30 P.M. 271.
8 Criminal Code Ordinance, sec. 30(1).
9 See A.-G. v. Chasin Ali, supra at 87.
10 The decision in Der'i v. A.-G. (1960) 14 P.D. 233, does not conflict with our general position. That case decided that a person could be convicted of attempted murder under sec. 222 of the Criminal Code Ordinance, even though there were lacking some of the elements of premeditation as defined in sec. 216. It was sufficient that the accused had formed an actual intent to kill. The court's holding was based on the following considerations:
(a) Sec. 222(a) speaks of “any person who attempts to cause the death of another”, while sec. 223 speaks of a person who “attempts to commit murder”. From this difference in phraseology it may be inferred that sec. 223 requires all the elements of premeditation, while sec. 222 does not.
(b) Sec. 222(b) clearly implies that it is sufficient to establish intent to cause the death of the victim; this suggests that the legislator intended the same result with respect to sec. 222(a). It is unreasonable to suppose that the legislator intended different kinds of mental element for each of two offences which he grouped together under the marginal heading, “Attempt to Murder”.
(c) No particular importance should be attached to the marginal heading “Attempt to Murder” where the definition in the body of sec. 222 is clear, and there is a historical explanation for the phrasing of the heading.
It follows, therefore, that the court reached its decision primarily on the basis of the particular phraseology of sec. 222, and did not intend to establish a more general rule that actual intent is sufficient to establish an attempt, even though the completed crime requires a more complex state of mind.
11 Criminal Code Ordinance, sec. 29.
12 Compare Prof. Feller, S. Z., Criminal Law, vol. 2, p. 360 (Hebrew).Google Scholar
13 The same holds true for the antinomy “preliminary” and “completed” crimes. See, e.g., Suleiman v. A.-G. (1963) 17 P.D. 2913 at 2924.
14 For example, sec. 225 of the Income Tax Ordinance (New Version).
15 For example, sec. 7 of the Criminal Procedure Law, 1965.
16 For example, sec. 1(c) of the Amnesty Law, 1967.
17 For examples of decisions which rely on the definition of “offence” as a means of solving questions of the kind dealt with in this article, see A.-G. v. Yarhovsky (1951–52) 5 P.M. 129 (summary); A.-G. v. Trabulsi (1962) 30 P.M. 270; A.-G. v. Alias (1955) 9 P.D. 808; A.-G. v. Chasin Ali, supra. n. 3.
18 For example, sec. 1 (c) (4) of the Amnesty Law, 1967.
19 A.-G. v. Alias (1955) 9 P.D. 808; State oj Israel v. Balilty (1968) (I) 22 P.D. 233.
20 For example, sec. 5 of the Evidence Ordinance.
21 See, for example, sec. 4(a) of the Prevention of Profiteering and Speculation (Jurisdiction) Law, 1951, which gives the Tribunal for the Prevention of Profiteering and Speculation jurisdiction over economic offences.
22 For example, sec. 28(1) of the Courts Law, 1957.
23 A decision in this spirit was A.-G. v. Yarhovsky, supra. Prof. Feller has taken a different position in his article, “The Provisions Relating to the Typical Form of an Offence and their Application to its Derivative Forms of Criminal Conduct” (1967) 2 Is. L.R. 580, 584; in his view jurisdiction over the completed offence always implies jurisdiction over the “derivative” forms. See also, by the same author, 24 Hapraklit 443, 445.
24 Sec. 167 of the Criminal Procedure Law, 1965, provides that “if a felony is disclosed in a court not having jurisdiction to try it, the case shall be referred to a district court, which shall try it as if it was originally brought before it and may do so from the stage reached by the previous court.”
25 On the strength of sec. 167 of the Criminal Procedure Law, a district court may hear and render a conviction in an offence which constitutes a misdemeanor, as revealed by the facts established in the hearing.
26 There are no reported examples of such cases in Israel, but there have been several in England. See Rogers v. Arnott [1960] 2 Q.B. 244; R. v. Males [1962] 2 Q.B. 500.
27 Secs 309 and 310 of the Criminal Code Ordinance. On the difficulty of establishing that the accused knew that the property was acquired by a felony or a misdemeanor, see Al-Madi v. A.-G. (1962) 16 P.D. 724; D.P.P. v. Nieser [1955] 1 Q.B. 254.
28 Sec. 311, Criminal Code Ordinance.
29 Such is the case especially in many instances of impossibility. See Silving, Helen, Constituent Elements of Crime (1967) 105Google Scholar; Comment, “Why do Attempts Fail—a New Defense” (1960–1961) 70 Yale L.J. 160.
30 Obviously, there is also a public interest in amnesties, but it is less emphatic. See Feller, post, n. 31, p. 212 at note 26.
31 See Feller, S. Z., “Criminal Statutes of Limitation in the Light of Transitory Law” (1966–1967) 23 HaPraklit 212.Google Scholar
32 See the statement of the Minister of Justice in the Knesset in the first reading of the Amnesty Bill, 1967, Divrei HaKnesset, Sixth Knesset, Second Session, vol. 34, p. 2484, and of the chairman of the Committee on the Constitution and Laws, Divrei HaKnesset, Sixth Knesset, Second Session, vol. 35, p. 2580–81.
33 See, e.g., State of Israel v. Balilty (1968) (I) 22 P.D. 233.
34 Occasionally the legislation sets forth an express rule for attempts. See, e.g., Amnesty Law, sec. 1(c)(1).
35 The basic consideration is that frequently false accusations are made, resulting from neurosis, jealousy or the unwillingness of the victim to admit that he (or she) consented to the sexual act. See Williams, G., “Corroboration in Sexual Cases” [1962] Crim. L. Rev. 662Google Scholar; Sebba, L., “The Requirement of Corroboration in Sex Offences” (1968) 3 Is. L.R. 67.Google Scholar This factor is undoubtedly relevant in the attempt as well.
36 Accordingly, Prof. Feller is undoubtedly correct in his criticism of the opinion in Cohen v. State of Israel (1964) 41 P.M. 389, which reached the opposite conclusion. See Feller, n. 2 supra. Sec. 1(1) of the newly enacted Law to Amend the Law of Evidence, 1968, expressly provides that the qualification to sec. 3 of the Evidence Ordinance also applies to attempts. See also Feller, and Harnon, , “The Evidence Ordinance Amendment Bill (No. 6)” (1968) 24 HaPraklit 94.Google Scholar
37 The term “burden of proof” is here used in the broad sense, without distinguishing between the burden of leading evidence and the burden of persuasion.
38 On the distinction between presumptions based on experience and on convenience, see Morgan, Maguire and Weinstein, Cases and Materials in Evidence, 440 seq.; Morgan, , “Some Observations Concerning Presumptions” (1930–1931) 44 Harv. L.R. 906CrossRefGoogle Scholar.
39 See, e.g., Rittler, , Lehrbuch des österreichischen Strafrechts, 2nd ed., part 1, p. 266.Google Scholar The local legislator was aware of the existence of various types of attempts. See Criminal Code Ordinance, sec. 30(2), 30(3).
40 For our purposes, it makes no difference whether the presumption is irrebuttable, as is the case with the offence of sedition in sec. 60(2) of the Criminal Code Ordinance, or rebuttable, as is the case with the foregoing presumption in the ordinary case. See Jakobovitz v. A.-C. (1952) 6 P.D. 514, 545; and, in England, sec. 8 of the Criminal Justice Act, 1967.
41 Accordingly, it appears that Judge Zohar was too sweeping in implying that there is an insurmountable obstacle to applying the “natural results” rule in the case of an attempt. See Abu Ghosh v. A.-G. (1951) 5 P.D. 1249, 1253.
42 For our discussion it is assumed that the act passed the stage of preparation.
43 This section was repealed by implication by the Firearms Law, 1949. See Haddad v. A.-G. (1952) 5 P.D. 1413.
44 R. v. Howell (1839) 173 E.R. 901; R. v. Lankford (1959) Crim. L. Rev. 209; Williams, G., Criminal Law (2nd ed.) 621Google Scholar.
45 In State of Israel v. Siman Tov (1967) 21(1) P.D. 340. The question raised was whether to apply the presumption in sec. 10(b)(2) of the Defence (Finance) Regulations after it had already been proved that the accused believed that he was holding counterfeit dollars. Accordingly, Prof. Feller's criticism of this opinion is justified. See Feller, , “The Application of Presumptions to the Derivative Forms of an Offence” (1968) 3 Is. L.R. 562Google Scholar.
46 See Dahlberg v. People (1905) 80 N.E. 310; Hall, and Glueck, , Cases in Criminal Law (1940) 463Google Scholar; see also A.-G. v. Jedda (1952) 6 P.M. 295.