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The law distinguishes between various types of murder. The first is killing with an intent to kill as per s.3 of the Crimes Act 1958 (Vic). The second is killing with intent to cause really serious injury (or grievous bodily harm). The third is reckless murder. And the fourth is defensive homicide.

Murder was defined in the case of Zecevic v DPP (Vic) (1987) 162 CLR 645 by Wilson, Dawson and Toohey JJ who stated that, “Murder consists of an unlawful killing done with intent to kill or do grievous bodily harm”. It was also upheld that without the intention (mens rea) a person cannot be convicted of murder.

The crime of intent to cause really serious injury that results in murder turns murder into a constructive crime. Lord Styn in the English case of R v Powell (Anthony) [1999] 1 AC 1 neatly summarised the distinction between murder with the intent to kill and murder with intent to cause really serious injury by stating that:

In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated…”

It is the law in Australia that if a person intended to cause serious injury and it was “probable” (not possible) that death would occur, then that person is guilty of murder. This point of law was clarified by the High Court in R v Crabbe (1985) 156 CLR 464. If there are multiple acts that caused death, the prosecution must prove beyond reasonable doubt that each act was intended as per Meyers v R [1997] HCA 43.

As well as intention there must be sufficient causation to link the intended act of the defendant to the consequence of murder. This referred to as the ‘chain of causation’. For example a person punching a victim leaving him unconscious on the beach to drown. That constitutes adequate causation for murder.

The above example can be contrasted to the case of R v Lam [2005] VSN 296 where the victim was chased into the Yarra River by men with swords, and subsequently drowned. This was held not to satisfy the test of causation. This case is also extremely useful and relates to ‘acts of self preservation’ – for detailed analysis of acts of self preservation causing death or serious injury please see the heading in that case.

Should you require a lawyer please feel free to contact Grigor Lawyers. It is highly advisable in indictable matters that you contact a legal practitioner. Grigor Lawyers can can advise and represent you in these matters.


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