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14 Oxford U. Commw. L.J. 153 (2014)
Impossibility in the Law of Criminal Attempt: A Comparison of Canada, Australia and New Zealand

handle is hein.journals/oxuclwj14 and id is 153 raw text is: Oxford University Commonwealth Law Journal, 2014 Routledge Vol. 14, No. 2, 153-194, http://dx.doi.org/10.1080/14729342.2015.1047648 _ alo&FraGrup IMPOSSIBILITY IN THE LAW OF CRIMINAL ATTEMPT: A COMPARISON OF CANADA, AUSTRALIA AND NEW ZEALAND KAYLA BARKASE* AND DAVID MACALISTER** ABSTRACT Historically, offences considered 'impossible' of commission have been problematicfor the law of attempts. There is no consensus as to whether there is a legally relevant diference between the concepts of factual impossibility' and 'egal impossibility'. This is signfticant because it possesses implications for legal and moral responsibility, and also because it highlights uncertainty in the law. This article examines how impossibility has been treated in criminal attempt cases. An analysis of case law from three Commonwealth countries, Canada, New Zealand, and Australia was conducted. he results indicate that inconsistency in the approach towards impossibility attempts is a consequence of difering doctrinal frameworks. Unlike New Zealand, Canada and Australia generallv adopt a subjective approach; not surprisingly they rely on consequentialist rather than retributivist rationales of punishment. Despite being criticized as an area of law based on 'abstract conceptions,' this study demonstrates that impossibility cases raise broader social policy issues. Smith tries to steal a wallet from a passerby on the street. He knows that the wallet is not his and that he is depriving the rightful owner of his or her property. However, as Smith reaches into the pocket, he discovers he has made a mistake: the pocket is, in fact, empty. Upon realizing that it has started raining, and that he has forgotten his umbrella, Jones takes one from a nearby umbrella rack. Like Smith, he knows the umbrella is not his and does not intend to return it to its rightful owner. After arriving home, however,Jones, too, realizes he has made a mistake: he has 'stolen' his own umbrella. He had simply forgotten about leaving it in the umbrella rack earlier in the day. Although there is no consensus about whether Smith orJones committed a crime, there is a common sense intuition that they have nonetheless done something Kayla Barkase, BA (Hons I) (Simon Fraser University), MA Candidate (Simon Fraser University). Email: kbarkase@sfu.ca David MacAlister, BA (Simon Fraser University), JD (University of British Columbia), MA (Simon Fraser University), LLM (Queen's University), Associate Professor, School of Criminology, Simon Fraser University. Email: dmacalis@sfu.ca C 2015 Faculty of Law, Oxford University

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