Murder – s 18 of the Crimes Act 1900 (NSW)

GBH is injury to the body of a very serious kind. It is not necessarily permanent (serious disfigurement will suffice) or life threatening. (See section 4 of the Crimes Act 1900)

An intention to inflict GBH is one of three states of mind (mens rea or mental element) that constitute murder. (The other two are: an intention to kill and a reckless indifference to human life.)

The prosecution need only prove ONE mental element, or that murder was constructive.

This is where a person foresaw that the probable consequence of an act would arise in death, but continued in that act irrespective of death being a probable consequence.

Actual foreseeability of death alone must be proven beyond a reasonable doubt. It is not enough to convict an accused who merely thought that death or grievous bodily harm might arise from his or her actions.

Constructive murder occurs when a person dies during or after a person has committed or attempted to commit another offence carrying a penalty of at least 25 years of imprisonment. (Ryan 1967). Therefore, the Prosecution does not need to prove an intention to commit murder, or that death was foreseeable. (Munro 1981).

The Prosecution is only required to prove voluntariness. (Ryan 1967). An example is where an accused has accidentally wounded and killed a victim of a robbery. Here the use of a weapon is voluntary.

The maximum penalty for murder is:

• imprisonment for life (ie. the term of a person’s natural life) or for 25 years

NB: s 61 of the Crimes (Sentencing Procedure) Act 1999 provides that a life sentence is only to be imposed, 

‘if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.’

Further, a Judge has a discretion, pursuant to s 21 of the Crimes (Sentencing Procedure) Act 1999, not to impose a life sentence. The Act provides that,

‘If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.’

This option is recommended only where you accept that:

• you committed an act or made an omission that caused the death of another person AND
• you held an intention to murder the victim; OR
• you held an intention to cause grievous bodily harm to the victim; OR
• you held a reckless indifference for the life of the victim; OR
• you committed or attempted to commit an offence carrying a penalty of at least 25 years of imprisonment.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• you committed an act or made an omission that caused the death of another person AND
• you held an intention to murder the victim; OR
• you held an intention to cause grievous bodily harm to the victim; OR
• you held a reckless indifference for the life of the victim; OR
• you committed or attempted to commit an offence carrying a penalty of at least 25 years of imprisonment.

If the Prosecution cannot prove all of the relevant elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• Self defence
  • This defence is only available where you believe that your conduct was necessary to defend yourself or another person, and it is a reasonable response in the circumstances as you perceive them.
  • However, section 421 of the Crimes Act 1900 provides that where excessive force inflicting death has been used to defend yourself, it is necessary that you believe that such force was necessary to prevent harm to yourself or another person. However, a conviction for manslaughter applies if the person is criminally responsible for manslaughter. (See the manslaughter section.)
  • Self-defence does not apply in the context of protecting property or criminal trespass where force causes the intentional or reckless death of another person.
• Misfortune
  • If a person kills another person by accident, then this person is not guilty of murder, but may be guilty of manslaughter.
• Lawful excuse
  • An example of a lawful excuse is where an accused person has forewarned a victim of a risk of death when engaging in a particular activity, and the victim has chosen to take that risk.
• Extreme provocation
  • This is a partial defence which means an alternative verdict of manslaughter will apply where the jury would have found the accused guilty of murder. (See section 23 of the Crimes Act 1900.)
  • Extreme provocation may be considered where:
    • The deceased’s conduct affected the accused by committing a serious indictable offence which caused the accused to lose control; and
    • the response of the accused would have caused an ordinary person to lose self-control to the extent of intending to murder or cause serious harm to the deceased.
  • Provocation need not happen immediately before the act leading to death.
  • A non-violent sexual advance will not be considered for the purposes of extreme provocation.
• Substantial impairment by abnormality of mind
  • This is a partial defence which means an alternative verdict of manslaughter will apply where the jury would have found the accused guilty of murder. It is only available where all other issues on a charge of murder, such as provocation and self-defence, have been exhausted in favour of the Crown. The impairment has to be so substantial to warrant a murder charge being reduced to that of a manslaughter charge. (See s 23A of the Crimes Act 1900)
  • An abnormality of the mind refers to an accused’s capacity to:understand events; ordistinguish right from wrong; orexercise self-control.
  • Self-induced intoxication will not suffice as a defence. R v Gosling [2002] NSWCCA 351 at [25] and Zaro v R [2009] NSWCCA 219 at [34]–[37] provides instances of where directions were given that self-induced intoxication was to be disregarded as a defence.
• Intoxication
  • A defence of intoxication only apply if the consumption of drugs and alcohol was involuntary. Intoxication may then be used an argument that the accused could not have formed the requisite intent to commit the crime.
• Novus Actus Interveniens (Latin for “new intervening act”)
  • This is where an intervening act was a substantial or significant cause of death to a victim, rather than an act of an accused person being a substantial or significant cause of death to a victim. Swan v The Queen [2020] HCA 11 at [24].
• Automatism
  • Criminal responsibility for murder may be avoided where a person has involuntarily killed another person. Automatism can be:
    • insane (a disease of the mind). EG.
      • schizophrenia,
      • brain injuries.
    • sane (no disease of the mind present.) EG
      • Sleepwalking, R v Tolson (1889).
      • Epilepsy (not all cases), R v Youssef (1990) .
      • An act done under anaesthesia, R v Sullivan (1984).
      • An act done under a state of transient disassociation after severe emotional shock or psychological trauma that an ordinary person would not have withstood, R v Falconer (1990).
• Duress
  • You were threatened or intimidated into carrying out the murder.