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Module 3 · Murder
Murder in Victoria is a crime at common law, and its mental element runs three ways: an intention to kill, an intention to cause really serious injury, or knowledge that death or really serious injury was probable. In a problem question the contest is nearly always this mental element. Statutory murder under s 3A of the Crimes Act 1958 sits outside this module. Defensive homicide is historical only, abolished in 2014. The assessed skill is a clean fault analysis and the discipline to move to manslaughter when murder is not realistically open.
Cases at a glance
| Case | In a line |
|---|---|
| R v Crabbe (1985) 156 CLR 464 | The prime mover driven through the wall into a crowded motel bar at Ayers Rock, killing five, after the driver had been ejected from that bar. The primary authority for the mental element of murder in Victoria: knowledge that death or really serious injury was probable, not merely possible. A Crown application for special leave from a Full Federal Court decision which, by a majority, had quashed the conviction on five counts of murder and ordered a new trial |
| DPP v Smith [1961] AC 290 (Eng, HL) | An intention to cause really serious injury suffices, short of an intention to kill, and really serious injury is an ordinary phrase. Used in Victoria only for that meaning: in its other aspects the decision was strongly criticised and expressly dissented from by the High Court in Parker v R (1963) 111 CLR 610, though its authority on this point was affirmed in Hyam v DPP [1975] AC 55 (Eng, HL). Not R v Smith [1959] 2 QB 35, the Module 1 causation case |
| R v Rhodes (1984) 14 A Crim R 124 (Vic CCA) | Causing unconsciousness in the victim by asphyxiation. Really serious injury must be a bodily injury and unconsciousness can qualify; beyond the usual short definition it is unwise to elaborate |
| Parker v R (1963) 111 CLR 610 at 648-9 per Windeyer J | Cited in Victoria for the inference of intent from the character and circumstances of the act, as from the closeness of the range at which a shot was fired, where a properly directed jury could not reasonably have failed to draw the inference. Also the decision in which the High Court expressly dissented from DPP v Smith. Decoys share the name: Parker v R (1962) 111 CLR 610 and the Privy Council decision at (1964) 111 CLR 665 |
| Pemble v The Queen (1971) 124 CLR 107 | The sawn-off rifle carried up behind his former partner to frighten her, which discharged into the back of her head. Reckless murder needs the accused's own knowledge, not what a reasonable person would have known |
| R v Saunders and Archer (1577) 2 Plowden 473 (Eng) | A sixteenth-century decision. Poison meant for one person killed another, and malice transfers to the actual victim (Module 1) |
| La Fontaine v R (1976) 136 CLR 62 | Transferred malice stated in the High Court, murder where the shot misses the intended target |
| Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 (Eng) | The car wheel that stopped on a constable's foot and was knowingly left there. Fault must be contemporaneous with the act (Module 1). Appeal dismissed, Bridge J dissenting |
| Thabo Meli v R [1954] 1 WLR 228 (PC) | The victim beaten in a hut as planned, taken for dead and rolled over a cliff to die of exposure below. A series of acts as one transaction, so a killing completed while the accused believes the victim already dead can still found liability (Module 1). Appeal dismissed |
Attack plan
- State the elements: (1) acts which caused the victim's death; (2) committed voluntarily; (3) with the mental element; (4) without lawful justification or excuse.
- Fault: intent to kill, intent to cause really serious injury, or knowledge that death or really serious injury was probable, and any one suffices (Crabbe).
- Where words are absent, infer intention from what the accused said and did, and failed to say and do, before, at the time of, and after the act.
- Dismissal discipline: where the mental element is clearly absent, say so quickly and move to manslaughter.
- Contemporaneity: where the killing act is mislocated in time, run the single transaction (Thabo Meli, Module 1).
- Defences and mental impairment as twists.
Preliminaries, rarely examined. Three threshold points sit before the fault analysis, and each takes one line if the facts raise it. The victim must have been a human being, and a child becomes a human being when fully born in a living state, completely delivered from the mother's body and with a separate and independent existence (R v Hutty [1953] VLR 338). Death means the irreversible cessation of circulation of blood in the body, or the irreversible cessation of all function of the brain (Human Tissue Act 1982 s 41). The rule that death must follow within a year and a day is abolished, and survives only for offences alleged to have been committed before the abolition (Crimes Act 1958 s 9AA). A long delayed death raises a question of causation, not a time bar.
The fault element
The mental element of murder is satisfied by an intention to kill someone, an intention to cause them really serious injury, or knowledge that death or really serious injury would probably result. The physical elements sit in Module 1 and are rarely contested, so the mental element decides most problems.
Limb one: intent to kill
Intent to kill. To intend to kill is to mean to kill: to have someone's death as the purpose or design of one's act (R v Willmot (No 2) [1985] 2 Qd R 413). Judges avoid elaborating on the meaning of intent and leave the word to the jury as one of ordinary acceptation (R v Moloney [1985] AC 905; Cutter v The Queen (1997) 71 ALJR 638).
Proving the limb. A stated threat followed immediately by the act threatened proves the limb, and planning proves it as surely. Intention may be inferred from what the accused said and did, and failed to say and do, before, at the time of, and after the act. Where nothing suggests the accused meant anyone to die, put the limb aside in a sentence.
Demanding an announcement. The error is to treat intent to kill as unprovable without an admission. An unequivocal statement by the accused of her state of mind at the fatal moment is rare, and the jury determines intention from all the circumstances.
Limb two: intent to cause really serious injury
The boundaries. The injury must be a bodily injury, and unconsciousness qualifies: R v Rhodes was a case of causing unconsciousness in the victim by asphyxiation. The injury need not be life-threatening, which would unduly narrow the element (R v Cunningham [1982] AC 566). Purely psychological injuries are unlikely to be included. In most of its other aspects DPP v Smith was strongly criticised and expressly dissented from by the High Court in Parker v R (1963) 111 CLR 610, but its authority on this point has never been in doubt and was affirmed in Hyam v DPP [1975] AC 55.
The wrong-limb denial. An accused who says she never wanted the victim dead has answered only the intent to kill; this limb is an alternative and must still be run. The other standing error is the gloss: adding a life-threatening requirement, or borrowing a statutory definition of serious injury, restricts a phrase the law leaves to the jury as ordinary words.
Limb three: foresight that death or really serious injury was probable
Crabbe. In R v Crabbe the accused, after drinking heavily and being ejected from a crowded motel bar near Ayers Rock, returned in the early hours and drove his prime mover and trailer through the wall and into the bar, and five people died. The High Court held that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result is guilty of murder if death results, and that knowledge of a possible but not likely result is not enough. The trial judge's redirection in terms of foresight of a possibility was a material misdirection.
The height of the bar. Probable is not a mathematical term: the accused need not have mathematically weighed the probability, and the jury should not translate the accused's knowledge into terms of mathematical probability (Boughey v The Queen (1986) 161 CLR 10). A substantial and real chance can qualify: in R v Faure [1999] 2 VR 537 Brooking J's view was that firing once with one round in a six-round chamber is dangerous in the necessary sense. It is enough that the accused had the necessary intention or recklessness in respect of some person; awareness of a risk to the particular person who died is not required (La Fontaine).
Refusal to look. An accused who suspects the truth and deliberately abstains from inquiry is not thereby fixed with knowledge: actual knowledge or foresight is necessary, and imputed knowledge is not enough. Deliberate abstention from inquiry may, however, be evidence of the accused's actual knowledge or foresight, and that evidentiary use is its only use (R v Crabbe).
Murder against manslaughter. If the jury is to be directed on both reckless murder and involuntary manslaughter, the directions must draw an appropriate contrast between the mental states required for the two offences (Pemble; R v TY (2006) 12 VR 557).
| Reckless murder | Unlawful and dangerous act manslaughter | Negligent manslaughter | |
|---|---|---|---|
| Fault | Actual knowledge that death or really serious injury was probable | A reasonable person in the accused's position would realise an appreciable risk of serious injury | Great falling short with a high risk of death or really serious injury, meriting criminal punishment |
| Nature | Subjective, the accused's own foresight | Objective | Objective |
| Standard | Probability, not possibility | Appreciable risk | The reasonable and unintoxicated person |
| Authority | Crabbe | Wilson v R (1992) 174 CLR 313; R v Holzer [1968] VR 481 (Vic) | Nydam v R [1977] VR 430 (Vic); R v Lavender (2005) 222 CLR 67 |
The objective slip. The recurring error is to reason that the accused must have known because the danger was obvious. What a reasonable person would have appreciated may support an inference about the accused's awareness, but must not be treated as decisive of it (Pemble). Its statistical cousin measures probability per victim, when the question is the accused's knowledge of probable death or really serious injury to someone.
Proving fault without words
Proof without admissions. An intention to cause really serious injury may be inferred from the totality of the injuries inflicted and the circumstances in which they were inflicted, but the jury must still be satisfied that the accused held the intent at the time of the particular act that caused death (Meyers v R (1997) 147 ALR 440). The character of the act itself can carry the inference: where the shot was fired at close range, a properly directed jury could not reasonably fail to infer that the accused contemplated that death or at least grievous bodily harm was likely (R v Ryan and Walker [1966] VR 553, citing Parker v R (1963) 111 CLR 610 at 648-9 per Windeyer J). A subjective test governs throughout: the question is always the accused's own state of mind.
Motive against intention. An accused who fires a pistol at his business partner may have killing as his intention and the avoidance of a debt as his motive, and only the intention is the element, the motive being at most evidence of it (Zaburoni). The distinction runs the other way as well: a person who kills under duress does not desire the death she causes, but she does intend it. The banned direction is that a person is presumed to intend the natural and probable consequences of her acts: the High Court has said the phrase is not to be used with juries (Smyth v R; Parker v R). In R v Schonewille [1998] 2 VR 625 a direction that one normally intends the consequences of one's act cost the Crown its murder conviction, and a retrial was ordered.
Transferred malice: the changed victim
Saunders and Archer. In R v Saunders and Archer (1577) 2 Plowden 473, Saunders, intending to destroy his wife, mixed poison in a roasted apple and gave it to her; she ate a small part and gave the remainder to their child, and Saunders stood by while the child ate the poison, of which it died. It was ruled without much difficulty that Saunders was guilty of the murder of the child. On problem facts, prove the fault against the intended target first, then transfer it to the actual victim by name. The error is to let the changed victim pass in silence or to treat the changed victim as fatal to fault: the first loses the doctrine's marks, and the second misstates transferred malice.
Contemporaneity and the single transaction
Thabo Meli. The appellants, in accordance with a preconceived plan, took a man to a hut, gave him beer so that he was partially intoxicated, and struck him over the head; believing him dead, they rolled his body over a low cliff and dressed the scene to look like an accident, and he died of exposure at the foot of the cliff. The Privy Council held it impossible to divide up what was really one series of acts: the accused did not escape because they were under a misapprehension at one stage about whether their purpose had been achieved. The rule reaches beyond preconceived plans: in R v Church [1966] 1 QB 59 the accused knocked a woman unconscious in a fight, tried to rouse her for about half an hour, then, thinking her dead, threw her into a river, where she drowned, and the initial injuries and the disposal were a single series of acts.
A gap in time. Where hours separate the attack from the fatal act, argue the point rather than assume it: ask whether the later act belonged to a plan live at the first act, and conclude with the better view. The error runs both ways: treating a gap as automatically severing the transaction concedes too much, and treating the transaction as unbreakable claims too much. The Privy Council called the attempted division much too refined a ground of judgment (Thabo Meli).
The script for a murder answer
Script. Is the accused liable for the murder of the victim? 1. The accused committed acts which caused the victim's death (Module 1 causation). 2. The acts were conscious, voluntary and deliberate. 3. The fault coincided with the causal acts, the single transaction applying where the fatal act is mislocated in time (Module 1). 4. The accused held the mental element: state the rule (Crabbe), run the one realistically arguable limb on the decisive facts, then say briefly why the others fail. 5. Conclude, and if murder is not realistically open say so and address manslaughter next.
Causation triggers on murder facts. Step 1 is usually agreed, but five patterns signal a causation contest worth real words. The governing test: the accused's acts must have contributed significantly to the death, or been a substantial and operating cause of it, and they need not be the sole cause nor the direct or immediate cause (Royall v R (1991) 172 CLR 378). More than one contributing cause: a person can be criminally liable for a death that has multiple causes, even if she is not responsible for all of them. An intervening act, such as later medical treatment: the accused remains liable if her conduct is still a substantial and operating cause when death occurs, but not if it is merely the setting in which another cause operates (R v Evans & Gardiner (No 2) [1976] VR 523). Death while fleeing: the victim's acts must be a natural consequence of the accused's conduct, which requires that the victim's fear was well-founded and the response reasonable (Royall; R v Aidid (2010) 25 VR 593; Charge Book 7.1.2 [19], noting the contrary views of McHugh J and Mason CJ and R v Lee (2005) 12 VR 249). A failure by the victim or a third party to avert the consequences: there is no special test, and the question remains whether the accused's original act or omission remains a substantial and operating cause (Evans & Gardiner (No 2)). A vulnerable victim: the accused must take the victim as they find them, and the acts must have made a substantial or significant contribution notwithstanding the vulnerability. That the conduct was a necessary, but-for cause is not by itself sufficient. This box is the trigger list only; run the full category analysis from Module 1.
Selection. The fault paragraph carries the marks, and its skill is selection: an answer that runs all three limbs at equal length reads as a checklist recited rather than advice given.
A worked example
Facts. Rae argues with her flatmate Colm over unpaid rent and grips his throat with both hands. A neighbour times the grip at well over a minute and says it continued long after Colm went limp. Colm dies. At interview Rae says she never wanted him dead. Causation and voluntariness are not in issue.
Answer. Causation and voluntariness are agreed and take one line each. The contest is the mental element. Rae's denial answers only the intent to kill, and nothing beyond the act suggests she meant Colm to die, so that limb is put aside in a sentence. The realistically arguable limb is the intent to cause really serious injury. Really serious injury must be a bodily injury, and unconsciousness qualifies (Rhodes). Intention may be inferred from what Rae did before, during and after the act: the grip lasted well over a minute and continued after Colm went limp. Pressure maintained on a man who has stopped struggling is hard to read as anything short of a purpose to cause really serious injury. Reckless murder need not be reached if the intent limb succeeds. A jury could well find the intent proved, so the Crown could probably establish the mental element beyond reasonable doubt. Murder is realistically open on these facts, and the answer moves to defences rather than manslaughter.
Critical pitfalls and counter-arguments
Exam calibration. Most examined killings are contests over the mental element rather than open-and-shut. Treat the fault element as the contest: name the one realistically arguable limb, explain briefly why the others fail, and where murder is not realistically open, say so quickly and give the words to manslaughter.
How the examiners mark it
Marking runs element by element, with the time weighted to the contest. Where the Crown will plainly prove an element, say briefly why and move on; where it is not clear, explain why the Crown might have difficulty. Open the offence with the elements and their authority, then a sentence naming which elements are live.
Two levers earn the marks. Issue coverage helps, and calibrated conclusions are rewarded on their own: conclude in likelihood language, such as a jury would probably find the intent proved, or it is less clear that a jury would be satisfied of foresight. Commit where the facts run one way, and hedge with a stated reason where they do not.
Descend to manslaughter only where there is real doubt about murder. Where murder fails on fault, run the involuntary manslaughter elements; where murder is open and shut, manslaughter needs no discussion. Kill a doomed charge in one line rather than omitting it, and reuse the fault finding on the way down: a Crown that cannot prove an intent to cause really serious injury cannot prove an intent to kill, and the manslaughter analysis then turns on its own objective tests, not the failed intent. Give authority for every statement of law and skip the introduction.
Take it to the practice bank
This module is drilled in the Criminal Law practice bank. Every problem there carries a realistic Pass answer, an H1 model answer, and an examiner's comment explaining the decisive fact and where the marks are lost.
Practice prompts
- Name the one realistically arguable fault limb on a set of facts and explain why the others fail.
- Write the reckless murder paragraph so that it turns on the accused's own knowledge rather than the reasonable person's.
- Take an open and shut killing and a contested one, and calibrate how many words each deserves.
- Draft the sentence that dismisses murder and moves to manslaughter without losing the marks for raising it.
- Explain the gap between reckless murder and the dangerousness element of unlawful and dangerous act manslaughter.
- Prove the fault against the intended target, then transfer it to the actual victim by name.
- Argue both sides of a four hour gap between the attack and the act that killed, and conclude with the better view.
Check your understanding
Auto-marked drills. Answer, then see the authority in the feedback.