The law criminalises and punishes not only those who commit a criminal offence but also anyone who tries but fails to commit a completed offence. This is called an ‘attempted crime’.

The principal feature of an attempted offence is that it is committed even though the substantive offence is not completed. The criminal attempt consists of actions (or omissions) falling short of the completed crime - actions where the offender must have wanted the crime to be committed, got relatively close to actually committing it, yet ultimately failed to do so ‘owing to some accidental cause independent of his will’ – as the law itself holds under Article 41 of the Criminal Code.

If a man, intending to kill another man, shoots at his target but misses because he did not aim properly, there is obviously no murder; yet criminal liability exists since the miss was not intentional but was rather an outcome the offender did not desire.

If, on the other hand, the miss was voluntary – a notion referred to as ‘voluntary desistance’ – the offender is not guilty of ‘attempted murder’. In such instances, the offender is limitedly responsible for the acts he might have committed prior to voluntarily desisting from completing the crime, provided such acts amount to a criminal offence in the first place.

In the judgment The Police vs Owen John Carabott, delivered on January 11, 2024, the Court of Criminal Appeal delved into the constituent elements of attempted crime.

What constitutes an attempted crime?

At first instance, the appellant was found guilty of attempted aggravated theft and condemned to six-months effective imprisonment.

The victim, an elderly woman, had reported to the police that a stranger, who later turned out to be the appellant, repeatedly knocked at her residence and asked her for money. The victim, who on the day was expecting a visit from her nephew, had opened the front door only to be met by a complete stranger who claimed that he was collecting money for charity. Frightened, the victim tried her best to shut the door but the offender managed to stick his foot, preventing the victim from shutting it. Eventually the victim still managed to close the door.

Following police investigations, the offender was identified to be the appellant. He was charged with attempted aggravated theft and found guilty of this sole charge by the Magistrates Court.

He appealed, arguing that the elements required for attempted theft to subsist were missing. He claimed to be a homeless man and all he did was ask for money. For one to be found guilty of an attempted crime, the offender must have not only committed preparatory overt acts but must have also commenced the execution of the crime. Such acts must also necessarily be coupled with the intent to commit the crime; in this case, theft.

While the appellant denied that he had placed his foot at the door to block the victim from shutting it, he contended that such an act would have been, at best, a mere preparatory act not an act commencing the execution of the crime of theft. He moreover held that the prosecution fell short of proving that he acted with the criminal intent to actually commit theft. According to the appellant, the mere act, in and of itself, of preventing the door from being shut was not sufficient to conclusively infer that the appellant formed a criminal intent to commit theft.

He argued that the prosecution could have only assumptively reached such a conclusion and therefore it fell short of proving its case beyond a reasonable doubt.

Criminal intent

The Court of Criminal Appeal disagreed with these contentions. Proceeding to cite doctrine and jurisprudence to explain the notion of ‘criminal attempt’ and its consitituent elements, the court noted that the offender did not only stick his foot at the door to prevent its closure, but had also falsely purported to be the victim’s nephew while knocking at her door and even called her ‘nann’ (grandmother).

This factor, coupled with the appellant’s deliberate act of placing his foot at the door, clearly showed that his intention was indeed to enter the household and commit theft.

The Court of Criminal Appeal moreover pointed out that the appellant had at no point voluntarily desisted. There was nothing to show that he voluntarily removed his foot from the door and the only plausible reason why he eventually did so was because the victim used force in her efforts to shut it closed.

In light of these combined factors, the Court of Criminal Appeal considered the Court of First Instance was correct in reaching its decision of finding guilt. It held that with his actions, the appellant committed preparatory acts which were clearly aimed at carrying out the crime of theft.

In other words, the Court of Criminal Appeal was convinced that the appellant’s actions amounted to the commencement of the execution of the crime of theft and the actual theft failed to take place owing to an accidental cause independent of his will – i.e., the victim’s efforts of shutting her door closed.

On the basis of such considerations, the Court of Criminal Appeal confirmed the judgment delivered at first instance in its entirety, consequently confirming the appellant’s conviction and punishment.

Dr Jacob Magri is an Associate at Azzopardi, Borg & Associates Advocates.