– Common Law
Murder is the most serious offence for which you can be charged. It is heard in the Supreme Court and almost always results in a term of imprisonment if the accused is found guilty. It is crucial to obtain legal advice and legal representation if you have been charged with such a serious offence.
A murder charge is generally laid in situations where a person causes the death of another person by an intended act or omission.
Common law murder: The Legislation
Murder is common law offence and, as such, it does not have a specific legislation.
Common law Murder: The elements
The offence of intentional or reckless murder has three elements which the prosecution must prove beyond reasonable doubt:
- The accused committed acts which caused the victim’s death;
- The accused committed those acts voluntarily;
- The accused committed those acts while:
- intending to kill someone or cause them really serious injury; or
- knowing that it was probable that death or really serious injury would result.
- The accused did not have a lawful justification or excuse for those acts.
Element 1: Act which caused the Victim’s Death
The accused’s acts must have caused the victim’s death.1 That is, their acts must have ‘contributed significantly’ to the death. The act does not need to be the sole cause of death.2
Element 2: Accused must have Committed the Relevant Acts voluntarily
The accused must have committed those acts voluntarily. A voluntary act is one where the accused has conscious control of his or her bodily movements.3
Element 3: Mental States – Intention and Recklessness
The accused does not need to have intended that someone die – it is sufficient if they intended to cause someone really serious injury.
Murder can be committed intentionally or recklessly. To commit an act ‘recklessly’ is to commit that act knowing that someone will probably die or suffer really serious injury.4 The word ‘probable’ means ‘likely to happen’.5
Element 4: Defences to murder
Conduct that would otherwise be murder can be excused by a number of discrete defences, including:
- Provocation (for homicides committed before 23 November 2005)
- Duress and
- Sudden or extraordinary emergency
- Mental impairment
There is also the possibility that the accused has been wrongly identified, or there is a factual dispute.
Statutory murder: Unintentionally killing in furtherance of a violent crime
Under s3A of the Crimes Act 1958, a person who unintentionally causes the death of another person by an act of violence done in the course of a violent crime (which carries at least 10 years imprisonment as a maximum penalty) shall be liable to be convicted of murder.
For example, if you unintentionally kill someone whilst committing an armed robbery, you can be liable for murder. The same above defences apply.
Questions in cases like this
- What did you do or not do?
- Did you intentionally cause the death of the other person?
- Did you know it was probable that they would die?
- Were you suffering mental impairment at the time (a psychotic episode?)?
- Did someone else commit the act which caused the death?
- Were you and others committing a violent crime when the person died?
Maximum penalty and court that deals with the charge
Murder carries a maximum penalty of life imprisonment (section 3 of Crimes Act 1958).
What can you be sentenced to for this charge?
The standard sentence for murder is 25 years, or 30 years if the person murdered was a custodial officer or an emergency worker on duty (section 3 of Crimes Act 1958).
Between 2009 and 2014, 98% of people found guilty of murder were sentenced to a term of imprisonment.6
Any offence committed after 1 February 2018 for the offence of Murder will be subject to standard sentencing.
The standard sentence for the offence of Murder is 25 years.
This is the sentence that, taking into account only the objective factors affecting the seriousness of the offence, is in the middle of the range of seriousness.
For the purposes of assessing objective factors affecting the seriousness of a particular offence, matters personal to a particular offender or class of offenders are irrelevant.
The assessment must be done wholly by reference to the nature of the offending.
When sentencing an offender for a standard sentence offence, a court must give reasons for imposing that sentence. The court must refer to the standard sentence for the relevant offence of Murder and explain how the sentence that it imposed relates to that standard sentence. Standard sentences do not apply to people under 18 years of age at the time of committing the offence.
Other important resources
 Royall v R (1991) 172 CLR 378; R v Rudebeck  VSCA 155.
 Royall v R (1991) 172 CLR 378.
 He Kaw Teh v R (1985) 157 CLR 523;  HCA 43.
 R v Crabbe (1985) 156 CLR 464.
 R v Crabbe (1985)156 CLR 464.
 Sentencing Advisory Council, Sentencing Trends in the higher courts of Victoria 2009-10 to 2013-14, May 2015 No. 171.