Murder Physical Elements

Before you can convict the accused of murder, there are four physical elements that
the prosecution must prove beyond reasonable doubt:
1. The accused caused the victims death; and
2. The accuseds acts were conscious, voluntary and deliberate; and
3. The accused either:
a. Intended to kill or cause really serious injury; or
b. Knew that his/her acts would probably cause death or really serious injury; and
4. The accused killed the victim without lawful justification or excuse.
Conduct that results in death can include acts or omissions

Boughey v The Queen (1986)

Death or really serious injury being probable does not relate to a mathematical equation, eg 50%
or more chance of something happening. It is in the context of the consequence of the action.

R v Hutty (1953)
Murder is always of a human being which has been fully born and is in a living state. This is defined
as completely delivered from the body of its mother, and it has a separate and independent
existence it does not derive its power of living from its mother.

Crimes Act 1958 (Vic) s15

"serious injury" means
The destruction, other than in the course of a medical procedure, of the foetus of a
pregnant woman, whether or not the woman suffers any other harm.

Human Tissue Act 1982 - Sect 41

For the purposes of the law of Victoria, a person has died when there has occurred
(a) Irreversible cessation of circulation of blood in the body of the person; or
(b) Irreversible cessation of all function of the brain of the person.

Ryan v R (1967)
The prosecution must prove that the acts which caused the death were voluntary.

He Kaw Teh v R (1985)

The accused must have had conscious control of his/her actions at the time of committing the act.

R v Crabbe (1985)
An accused can be found guilty of murder if it is found they intended to cause really serious injury at
the time of the act.

Crimes Act 1958 (Vic) s9

If the victim dies in Victoria, the matter may be tried in a Victorian court, regardless of whether or
not the causal acts occurred in Victoria.

R v Faure (1999)
It is at the discretion of the jury to decide whether it was probable that death or really serious injury
would occur as a result of the accuseds act.

MURDER CHECKLIST
Q1: Did the accuseds conduct cause the victim to die?
If no, then accused is not guilty but go on to consider Q2 in case the answer is yes.
If yes, then go to Q2.
Sub-questions:
Did the accuseds conduct cause that death?
What was the total factual sequence of events leading up to the victims death?
o What are all the contributory factors that led to the death? However, do not recite
the full factual sequence in your written answer.
Would an ordinary person hold, as a matter of common sense, that the accuseds act was a
cause of the result? (Royall v R (1991))
o That is, did the accuseds conduct contribute significantly to the victims death; was
it a substantial and operating cause of the death? (Royall v R (1991))
If there were other causally contributory factors, was the accuseds conduct
a significant factor?
Are there any complicating factors that apply in this case that look like they could break the
chain of causation? For example:
o Did something or someone else intervene after the accuseds conduct (e.g. the tide
(Hallett) or poor medical treatment (Evans and Gardner (No 2))?
o Did the victims own action causally contribute to their death?
If so, were the victims actions a natural consequence of the accuseds
conduct?
Where the victims act was a response to a threat created by the
accused, was the victims fear of the accused well-founded and was
their response to the threat reasonable? (Royall)
o Did the victim or someone else fail to intervene to prevent death?
NB: where the victim refused medical treatment (e.g. leaving
hospital against medical advice (Bingapore) or refusing a blood
transfusion (Blaue)), this alone will not break the chain of causation.

Q2: Were the accuseds actions that caused the victims death conscious, voluntary and
deliberate? (Ryan v R (1967) - Voluntary) (He Kaw Teh v R (1985) Conscious action)
If no, then accused is not guilty but go on to consider Q3 in case the answer is yes.
If yes, then go to Q3
Sub-questions:
Did the accused perform an act?
Did the accused omit to perform an action they had a legal duty to perform?
Was the accused conscious at the time?

Q3: Did the accused intend to kill or cause really serious injury?
If no, then go to Q4.
If yes, then go to Q5.
Sub-questions:
Did the accused intend to kill?
Is there evidence as to the accuseds state of mind?
Did the accused intend to kill the victim?
Did the accused intend to kill someone, but not anyone in particular?
Did the accused intend to kill a particular person other than the victim? (La Fontaine v
R (1976)
o If so, was it a mistake or chance that it was in fact the victim who died?
o In any case, transferred malice applies.
Did the accused intend to cause really serious injury? (R v Crabbe (1985))
The same questions apply as above, but adapted to cover really serious injury.
Was the injury the accused intended really serious injury? (Wilson v R (1992))
o Was it a bodily injury, including unconsciousness? (R v Rhodes (1984))
o Does not need to be life-threatening injury. (R v Cunningham (1982))

Q4: Did the accused know that their act would probably cause death or really serious injury?
If no, then accused is not guilty but go on to consider Q5 in case the answer is yes.
If yes, then go to Q5.
Sub-questions:
Did the accused know that their act would probably cause death?
Was death a probable outcome?
o As opposed to death being simply possible
o Probable is not a mathematical percentage
Did the accused personally know that death was probable?
o Not enough if simply a reasonable person would have known.
Did the accused know that their act would probably cause really serious injury?
Was really serious injury a probable outcome?
o As opposed to really serious injury being simply possible
o Probable is not a mathematical percentage
Did the accused personally know that really serious injury was probable?
o Not enough if simply a reasonable person would have known.

Q5: Did the accused act without lawful justification or excuse?

If no (i.e. the accused acted with lawful justification or excuse), then accused is not guilty.
If yes, then the accused is guilty.

Murder Fault Elements

Before you can convict the accused of murder, there are four subjective fault elements that
the prosecution must prove beyond reasonable doubt existed in the accuseds state of mind. These
elements come from Stephens Digest of Criminal Law (1877) cited in R v Crabbe (1985).
i)
ii)
iii)
iv)

Intention to cause death/to kill

Intention to cause really serious injury
Knowledge that death would probably result
Knowledge that really serious injury would probably result.

Intentional murder has been committed if element 1 or 2 have been fulfilled.

Reckless murder has been committed if element 3 or 4 have been fulfilled.
The principle of transferred malice is where the accused intended to kill a specific person, but they
accidently killed someone else without meaning to. They have still committed murder as the malice
they intended has been transferred onto the person they actually killed.