Murder

[5-6300] Introduction

Murder, as defined by s 18(1)(a) Crimes Act 1900, is made out where a voluntary act or omission of the accused causes the death of the deceased and the act is committed with:

1.: an intent to inflict grievous bodily harm, or
2.: an intent to kill, or
3.: reckless indifference to human life, or
4.: committed by the accused or some accomplice with them in an attempt to commit, or during or immediately after the commission of, an offence punishable by at least 25 years imprisonment (constructive murder).

Section 18 does not apply to the circumstance of a person who kills themself intentionally, or accidentally, or in an attempt to commit, or during or immediately after the commission of, a crime (referred to in point 4, above) or by attributing to another person an act which caused a self-killing: IL v The Queen (2017) 262 CLR 268 at [25], [79]–[80].

Malice, as referred to in s 18(2)(a), has no role to play where the Crown is able to prove an act described in s 18(1): IL v The Queen at [90], [95], [168]. In the case of constructive murder, once the mental element for the foundational offence is established to the requisite standard, malice is also established: IL v The Queen at [169].

As to murder generally, see Criminal Practice and Procedure NSW at [8-s 18.1]ff; Criminal Law (NSW) at [CA.19A.20]ff.

Reckless indifference to human life is the doing of an act with the foresight of the probability of death arising from that act: The Queen v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Campbell v R [2014] NSWCCA 175 at [304]. In some cases there may be little difference between doing an act with an intention to kill (or to inflict grievous bodily harm) and doing an act in the recognition that it would probably cause death: Campbell v R at [311]. As to the relevance of intoxication to this head of murder, see R v Grant (2002) 55 NSWLR 80.

The Complicity chapter at [2-700] sets out the circumstances where a person may be criminally liable in various ways for a crime physically committed by another person. In the case of murder it is common for the Crown to frame an accused’s liability on the basis of accessorial liability, joint criminal enterprise or extended common purpose. These distinct areas of the law are explained at [2-710]ff and [2-740]ff respectively together with suggested directions. As to the application of joint enterprise to constructive murder, see further at [2-770].

The following additional issues listed below commonly arise in murder trials. A discussion of each of these issues with suggested directions can be located where indicated below:

Voluntary act of the accused, see [4-350]ff including the specific references to act(s) of the deceased and causation at [4-355] and [4-360]
Causation, see [2-300]ff
Intoxication, see [3-250]ff
Self-defence and excessive self-defence, see [6-450]ff
Provocation, see [6-400]ff
Substantial impairment by abnormality of mind, see [6-550]ff.

[5-6310] Suggested direction — mental element of murder

Note:: The direction below addresses the mens rea for murder where the Crown alleges that the accused intended to kill or inflict grievous bodily harm or was recklessly indifferent to human life. The direction should be adapted according to the issues in the specific case. Putting aside the positive judicial obligation to leave an alternative verdict(s) (see [5-6330] below), a judge should not give directions for a factual scenario or a form of liability not relied upon by the Crown: R v Robinson [2006] NSWCCA 192 at [157].

The Crown has to prove beyond reasonable doubt that, at the time they did the deliberate act which caused the death of [the deceased], [the accused] had an intention to kill the deceased, or an intention to inflict grievous bodily harm upon them, or that the act which caused death was done with reckless indifference to human life. This is the second element of the basic ingredients of murder. It is often referred to as the mental element of the offence of murder which the Crown has to prove beyond reasonable doubt.

These three states of mind are separate and distinct. The Crown needs to prove beyond reasonable doubt that [the accused] had any one of them at the time they did the act causing death. In relation to the mental element of the crime of murder, what the Crown has to prove is the state of mind of the accused at the point of time of the act causing death.

[If there is an issue about the act causing death the various alternatives should be addressed.]

Of course, you can infer or conclude what a person’s state of mind is at any particular point from a consideration of the person’s state of mind leading up to that particular time and sometimes afterwards. You do not take the particular point of time out of the context in which it occurred. You look at it as part of a series of events that took place, both before and after the act causing the death of the deceased occurred.

Intention

I will explain the first two states of mind — an intention to kill or inflict grievous bodily harm — together since they are related.

For the offence of murder, the Crown has to prove beyond reasonable doubt that, at the time they committed the deliberate act that caused the deceased’s death, [the accused] did that act with either an intention to kill or an intention to inflict grievous bodily harm upon [the deceased]. Grievous bodily harm is simply bodily injury of a really serious kind. This type of injury does not have to be permanent or even life threatening. You decide what sort of injury would be described as being really serious because that is an issue of fact for you.

Intent and intention are very familiar words. In the legal context in which we are considering them, they carry their ordinary everyday meaning. A person’s intention may be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused person before, at the time of, or after they did the specific act which caused the death of the deceased. In some cases, a person’s acts may provide the most convincing evidence of their intention at the time. Where a specific result is the obvious and inevitable consequence of a person’s act, and where the person deliberately does that act, you may readily conclude that they did that act with the intention of achieving that particular result.

In this case …

[Outline the Crown’s argument concerning the evidence of the accused’s intention and any counter arguments by the defence.]

So the first two states of mind which are necessary for the crime of murder are either, that [the accused] had an intention to kill [the deceased], or an intention to inflict really serious bodily injury upon them.

Reckless indifference

The third state of mind, which the Crown relies upon to prove murder, is known in legal terms as reckless indifference to human life. If, at the time [the accused] committed the act that caused the death of [the deceased], they foresaw or realised that this act would probably cause the death of [the deceased] but [the accused] continued to commit that act regardless of that consequence, then [the accused] would be guilty of murder.

What is at the nub of this mental state is that [the accused] must foresee that death was a probable consequence, or the likely result, of what they were doing. If [the accused] did come to that realisation, but decided to go on and commit the act regardless of the likelihood of death resulting, and if death does in fact result, then [the accused] is guilty of murder. The conduct of a person who does an act that the person knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who commits an act with a specific intention to cause death.

For this basis of murder, [the accused’s] actual awareness of the likelihood of death occurring must be proved beyond reasonable doubt. It is not enough that they believed only that really serious bodily harm might result from their conduct or that [the accused] merely thought that there was the possibility of death. Nothing less than a full realisation on the part of [the accused] that death was a probable consequence or the likely result of their conduct is sufficient to establish murder in this way.

Again, you are concerned with the state of mind that [the accused] had at the time they committed the act causing death. What you are concerned about when considering the mental element of the offence of murder is the actual state of mind of [the accused], that is, what they contemplated or intended when [the act causing death] was committed.

[5-6320] Constructive (felony) murder

Last reviewed: September 2024

Section 18(1)(a) provides that murder is committed where the act causing death was done in an attempt to commit, or during or immediately after the commission, of a crime punishable by imprisonment for 25 years. For a historical discussion of constructive murder, see IL v The Queen (2017) 262 CLR 268.

Whether the act causing death was done “during or immediately after” the crime is a question of fact for the jury and it is important that the judge instruct jurors to turn their mind to the issue where it is in dispute: Hudd v R [2013] NSWCCA 57 at [101]. The judge should instruct the jury in terms of the language used in s 18(1)(a) rather than some other verbal formula: R v Attard (unrep, 20/4/93, NSWCCA) per Gleeson CJ at pp 6–7. It is essential that the judge direct the jury as to the basis of the accused’s liability for the foundational offence: Batcheldor v R [2014] NSWCCA 252 at [80]–[82].

The act causing death should be identified by the Crown and the judge should direct the jury accordingly. The Crown must also prove that it was a voluntary or willed act of the accused or their accomplice: Penza v R [2013] NSWCCA 21 at [167]. This may, in an appropriate case, require the jury to determine whether there was a voluntary act of the accused, for example where the accused asserts that the discharge of the weapon was an accident, see Voluntary act of the accused at [4-350]ff. In this regard there is a distinction between a voluntary act and an intentional one.

A defence of self-defence is not available to constructive murder where the act done is done for the purposes of both carrying out the foundational offence and from a genuine belief the act is necessary to defend oneself or another: Coskun v R [2024] NSWCCA 67 at [68]; see also R v Burke [1983] 2 NSWLR 93 at 101–104.

For commentary on the operation of principles of complicity to the doctrine of constructive murder, see Suggested direction — accessory before the fact at [2-710] and Suggested direction — application of joint criminal enterprise to constructive murder at [2-770] and accompanying Notes.

[5-6330] Suggested direction — constructive murder

Note:: The direction below does not cover the scenario where the Crown relies upon the application of joint criminal enterprise to constructive murder. See [2-770] for a suggested direction and the decision of R v Sharah (1992) 30 NSWLR 292 at 297–298 referred to in IL v The Queen (2017) 262 CLR 268.

There is another alternative way in which the Crown says that [the accused] is guilty of murder. In relation to this alternative, the Crown does not have to establish any specific intention to injure. It is quite different from the earlier ways in which the Crown has sought to argue that the accused is guilty of murder.

The crime of murder can be committed where the act of the accused which caused the death of the deceased was done in an attempt to commit, or during or immediately after the commission by the accused, or an accomplice, of a really serious offence. A really serious offence is a crime punishable by imprisonment of life or 25 years.

[If attempt is in issue add

The crime of murder can also be committed where the act of the accused which caused the death of the deceased was done in an attempt to commit, or during or immediately after an attempt by the accused, or an accomplice to commit, a really serious offence as I just described to you.]

In this case the Crown alleges that the really serious offence that was committed was one of [short description of crime]. I direct you, as a matter of law, that this is a crime that is punishable by imprisonment of [life or 25 years].

[If there is a dispute as to whether the act occurred during, or immediately after the commission of the crime, add:

The act causing death must be done during or immediately after the commission of the really serious offence. It is a question of fact for you to decide on the evidence whether it occurred during or immediately after the commission of the crime. In this case it is important that you consider this issue because it is in dispute.

Refer to the evidence relied upon by the Crown and defence on the issue.]

The Crown must establish beyond reasonable doubt that the accused, or an accomplice with the accused, did commit [if applicable: attempted to commit] the really serious offence. In this case, the Crown must prove beyond reasonable doubt all the ingredients of [short description of crime]:

[Set out the ingredients of the crime or attempted crime relied upon by the Crown and whether the Crown alleges the accused or their accomplice committed the crime or attempted to commit the crime]

So it is the Crown case that the act which caused the death of [the deceased] occurred during or immediately after the commission of a really serious offence [or in an attempt to commit that particular crime].

[5-6340] Alternative verdict of manslaughter

Manslaughter must be left to the jury as an alternative charge to murder where it is open on the evidence or, in other words, where such a verdict is viable: Nguyen v The Queen [2013] HCA 32 at [23]; James v The Queen (2014) 253 CLR 475 at [19]–[23]; Martinez v R [2019] NSWCCA 153 at [78]; Lane v R [2013] NSWCCA 317 at [39], [100]–[102]. The jury should be instructed about the availability of a verdict of manslaughter regardless of the attitude taken by the parties, and even where one or both of the parties object: Lane v R at [39]; R v Kanaan (2005) 64 NSWLR 257 at [75]; Penza v R [2013] NSWCCA 21 at [168]–[176]. The duty extends to leaving the possibility of returning a verdict of manslaughter on a different basis to that proposed by counsel at trial: Martinez v R [2019] NSWCCA 153 at [73], [78].

Section 25A(7) Crimes Act 1900 provides that in a trial for murder the jury may return an alternative verdict for an offence of assault causing death while intoxicated under s 25A(2) or assault causing death under s 25A(1). Sections 52AA(4) and 52BA(4) Crimes Act permit the jury to return an alternative verdict for the offences under ss 52A and 52B where the accused is indicted for murder or manslaughter.