R v Susak [1999] NTSC 61; 105 A Crim R 592

aggravation namely that he was armed with an offensive weapon namely a

At the commencement of the hearing both counsel indicated to me that they

wished to place before me an agreed set of facts and certain other evidence

which, they had agreed, would constitute the whole of the evidence of the

prosecution to be placed before a jury when empanelled. They asked me to

consider the matter under s 26L of the Evidence Act, inviting me to rule on

the issue of whether or not, as a matter of law, on the Crown case there was

any issue to be left to the jury. In other words, taking the Crown case at its

I note that this approach to such matters has previously been adopted in this

Court; R v Bowman (No.1) (1987) 75 ALR 45. In the circumstances of this

matter the procedure suggested appealed to me as being both sensible and

convenient and in no way detrimental to the interests of the accused.

I received the statement of agreed facts, a chronology and I viewed a video

tape. I also had before me a tape recorded record of interview between

The evidence is that the accused, who had recently arrived at Alice Springs

and was short of money, went to the car park at the Alice Springs Cinema on

the night of 28 April 1998. The agreed facts continued:

"At around 9.08pm the accused got out of the vehicle and walked

over to the Cinema complex rear doors and entered. The accused

went inside and observed where the box office was before leaving at

around 9.10pm and returning to the vehicle, which was parked at the

southern end of the car park. At around 9.28pm the accused went

back to the Cinema again before walking back to his car at around

9.30. The accused then went to the rear of the vehicle and opened

the boot. From inside the boot the accused took hold of a Winchester

rifle which was situated in a rifle carry case. The accused removed

the rifle from the boot. This action was observed by a witness who

was standing outside the Metro Entertainment Centre. The police

received a call from a member of the public who had sighted these

As the accused removed the rifle a police van drove along Leichhardt

Terrace, driving past the accused. The accused observed this and

quickly placed the rifle back into the boot of the vehicle. Once the

police vehicle had passed, the accused took a large hunting knife

which was in its sheath, from the boot, and strapped it to the left side

of his chest with a belt. At around 9.35pm the accused who was

wearing a large brown jacket then walked to the rear door entrance to

As the accused got to the doors he tried to open them but they had

been locked, as it was the Cinema employee's practice to lock them

shortly after the last film had begun. The last film had begun at

9.15pm. The accused then walked back to his vehicle before leaving

the area at around 9.37pm. Police attended at 9.38pm but were

At around 10.25pm on Wednesday 29 April 1998, the accused was

located by police near the same vehicle at the rear of the Melanka

Lodge. A search of the vehicle revealed several items of clothing

that were worn by the accused the night before and a Winchester 30-

30 lever action rifle, serial number 5486623. There was also a box

of ammunition containing 13 centre fire rounds. The rifle was n ot

loaded. The accused was arrested and conveyed to the police station,

where he was held under s 137 of the Police Administration Act

The accused entered into a record of interview with police in the course of

when he first arrived at the car park he was thinking about "going

into the Cinema ... and just holding up the chick there, at the

he had reversed his car into the car park in order to facilitate a quick

he went into the Cinema and had a look around and then went back

to the car to get his rifle and "I saw the coppers come past when I

was at the boot of the car and, um, yeah I said so stuff that";

at all material times he had been wearing a shirt and shorts covered

by a Dryzabone (a type of overcoat) and was wearing a beanie;

he had obtained the rifle to threaten the person in the ticket box;

he then went back to the Cinema without the rifle. He was carrying a

bag which had a Coca-Cola insignia on it. There was nothing in the

bag but he said that he "just had it for the cash";

at that time he said he had his hunting knife "on the inside of my

chest", it was strapped to him with a belt. He took it with him

because "it might be easier than with the rifle, than using the rifle";

when he went to the Cinema complex on this occasion he said that he

was "just going to have a look in, just check, um, what was going

when he got to the Cinema door it was locked and he returned to his

when asked what he would have done had the door not been locked

he responded "um, probably go and get, get the rifle out ... go in and

he said that the matter was a spur of the moment thing and that he

had thought about it for an hour or so. He was desperate for cash

The submission made on behalf of the accused was that this could not

amount to an attempt but, rather, amounted to preparation.

The Criminal Code deals with attempts to commit offences in s 4 and, for

present purposes, the relevant parts of that section are as follows:

"(1) When a person, intending to commit an offence, begins to put

his intention into execution by means adapted to its fulfilment and

manifests his intention by some overt act, but does not fulfil his

intention to such an extent as to commit the offence, he is said to

(2) It is immaterial, except so far as regards punishment, whether the

offender does all that is necessary on his part for completing the

commission of the offence, or whether the complete fulfilment of his

intention is prevented by circumstances independent of his will, or

whether he desists of his own motion from the further prosecution of

It has been held that s 4 reflects the common law; Prior (1992) 65 A Crim R

1 at 7. Both counsel submitted that this was the case and I accept that

At common law and in the various jurisdictions where

legislative provisions are said to reflect the common law there has been

much discussion as to the method by which one determines whether there

exists a criminal attempt or merely preparation to commit a crime. In the

South Australian case of Collingridge (1976) 16 SASR 117 it was said that

the following was "correct as an exposition directed to the facts" of that

"To constitute an attempt, what is done must go beyond mere

preparation to commit the crime and must amount really to the

beginning of the commission of the crime. The accused must

actually have embarked upon the commission of the cri me. Such a

step towards the commission of the crime is an attempt ...".

That, of course, raises the question, what is to be regarded as the "beginning

of the commission of the crime"? One test which has been propounded is

the so-called "proximity test" which found expression in the judgment of

Parke B in the English case of Eagleton [1854] EngR 34; (1855) 6 Cox CC 559 where he said:

"Acts remotely leading towards the commission of the offence are

not to be considered as attempts to commit it; but acts immediately

relation to attempt and concluded (at 686) that "the actus reus of attempt

should be tested by reference to a general proximity rule, qualified by the

stipulation that the alleged act of attempt must go beyond an act done

In Archbold: Criminal Pleading, Evidence and Practice (43

learned authors referred to the judgment in Davey v Lee (1967) 51 Cr. App.

"It is submitted that the actus reus necessary to constitute an attempt

is complete if the prisoner does an act which is a step towards the

commission of the specific crime, which is immediately and not

merely remotely connected with the commission of it, and the doing

of which cannot reasonably be regarded as having any other purpose

Of course it is for a jury to decide whether the facts proved amount to an

attempt as charged. It is for me to decide whether there is any evidence

In this case Mr Georgiou, who appeared for the accused, submitted that all

that had occurred was merely preparatory and could not amount to an

attempt. It was his submission that further steps were required before an

attempt was made. He said that the accused needed to obtain entry to the

building, travel the 30 or 35 metres to the ticket box, approach the cashier,

make a demand for money and by production of weapon or threat obtain the

money. The crime would only be complete when all of those steps had been

Mr Georgiou also pointed out that the accused in his record of interview

expressed his intention as being to "check out what was going on" and said

that when he had done so he would "probably go and get, get the rifle out ...

go in and rob the cinema". This latter observation would appear to be

inconsistent with the history of the matter. The accused had previously been

to check out the Cinema complex and he was, on this occasion, returning

with a knife and a bag "for the cash". It would be open to a jury to hold that

he was, on this occasion, intent on giving effect to the plan to "go in and rob

the Cinema", notwithstanding his comment regarding the rifle.

Mr Georgiou referred me to the case of Tony Campbell (1991) 93 Cr. App.

R. 350. In that case the Court of Appeal considered a matter with

similarities to the present case. The facts of the matter were summarised by

"On October 20, 1988, the appellant was lurking about in the vicinity

of this sub-Post Office. He was on a motor cycle, sometimes riding

along the road and sometimes walking around, having parked the

motor cycle not far away. He was dressed in the garb of a motor

cyclist � a suit, crash helmet and gloves. At about 15 or 20 minutes

before midday the watching police officers saw the appellant walking

towards the Post Office. He removed a pair of sunglasses from his

breast pocket. He put them on and then he was seen to put his hand

into the right thigh pocket of his motor cycle suit, it seemed that

there was something heavy there. He stopped walking when he was

about 30 yards away from the Post Office, took off his sunglasses

and, after looking around for a while, he walked away from the Post

Office. About half an hour later the police o fficers again saw the

appellant walking towards the Post Office. He did not put his

sunglasses on on this occasion, nor did he reach into his right thigh

pocket. He was merely walking along the pavement on the same side

of the road as the Post Office going towards it. In front of the Post

Office, as we are able to see for ourselves from a photograph which

the jury had before them, there is � to the right of the single door

leading into the premises � a red post box. There is a space between

that and the wall of the premises sufficiently wide for people to pass

and re-pass. As the appellant � coming from right to left in the

photograph, was passing the post box the officers moved in. They

grabbed hold of him just as he passed the post box, he then being but

a yard or so from the Post Office door. He had upon him, when he

was searched, an imitation firearm. He had the sunglasses earlier

referred to. He had a note upon which he had written, as he

afterwards admitted, words couched in the most vulgar ter ms and

which were of a most threatening nature. His intention it was said

was to place that note under the grill on the counter of the Post

Office so that it could be seen by whoever was behind.

no doubt, upon seeing him, that note and possibly the firearm, the

person behind the counter would be so sufficiently frightened as to

The accused in that matter took part in a record of interview in which he

admitted he had intended, up to a certain time, to carry out a robbe ry if he

could. He said that he had, at the time of apprehension, decided that the

robbery was not worth doing and that he was "idly by the Post Office at the

time he was arrested and would have gone not very much further beyond that

In that case the Court held that the trial Judge was in error in coming to the

conclusion that, on the evidence before him, the jury could properly

conclude that an attempt had been made. The Court held that he should have

"In order to effect the robbery it is equally beyond dispute it would

have been quite impossible unless obviously he had entered the Post

Office, gone to the counter and made some kin d of hostile act �

directed, of course, at whoever was behind the counter and in a

position to hand him money. A number of acts remained undone and

the series of acts which he had already performed � namely making

his way from his home or other place wher e he commenced to ride

his motor cycle on a journey to a place near a Post Office,

dismounting from the cycle and walking towards the Post Office door

� were clearly acts which were, in the judgment of this Court,

indicative of mere preparation, even if he was still of a mind to rob

the Post Office, of the commission that is the offence of robbery. If

a person, in circumstances such as this, has not even gained the place

where he could be in a position to carry out the offence, it is

extremely unlikely that it could ever be said that he had performed an

It would be unwise of a court to lay down hard and fast rules as to

when, in varying circumstances, an attempt has begun. The matter

has to be decided on a case by case basis as the issue arises. Always

remembering that it is for the Judge, as has already been said as a

matter of judgment, to come to the conclusion whether or not the

Crown, at the end of its case, had brought before the Court evidence

which properly and safely can be left to the jury to consider upon the

The circumstances of the matter before me are, in relevant respects, almost

identical with those in the matter of Tony Campbell (supra). In the matter

before me the accused tried the door rather than being simply in the vicinity

of the door, but I do not see that as being a significant difference. Further,

in the matter of Tony Campbell (supra), there was some evidence that the

accused had changed his mind at the last minute. Given the effect of s4(2)

of the Northern Territory Criminal Code I do not see this as a matter of

Consistent with the approach taken in the matter of Tony Campbell (supra) it

is my view that the point reached in the present case w as not sufficiently

proximate to enable it to be characterised as an attempt to commit the crime

rather than as "an act done merely by way of preparation to commit a

crime". The accused had not yet entered the premises, he had not reached

the location where the crime was to be committed and he was still

approaching the point where he could be said to have embarked upon the

Mr Watson invited me to adopt the so-called "if not interrupted test". The

nature of that test is discussed by Professor Gillies in his work Criminal

th Ed.) where he rejected it (p686) as being "a capricious limitation

on the more general [proximity] test". In my opinion this test is not an

appropriate test to apply in the circumstances of this matter and would in the

circumstances provide an unacceptably wide operation for the attempt

It must be remembered that what is being decided in cases such as the

present is not whether the conduct of the accused amounts to conduct of a

criminal kind, but rather whether it amounts to an attempt to commit the

In the circumstances, assuming the evidence to be as it has been placed

before me, I would not allow the matter to be left for a jury to decide

whether the facts proved amount to an attempt as charged.