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Explaining the Four Types of Murder in Australia
Many criminal law assignment and exam questions require a consideration of the four types of murder. Many students struggle to understand conceptually that there are various types of murder relevant to a problem question, and often fail to identify that one set of facts can satisfy multiple categories of murder. This blog post provides a simple explanation of each category of murder, and offers insights into how to spot which type is being assessed and how to structure your answer.
The most common topic for major pieces of assessment in criminal law is murder or 'homicide.' If murder is part of your criminal law course and you were not given an assignment question on the topic you can almost guarantee you will have an exam question on murder. The reason for this is it is easy for a course convenor to write a single question that assesses six areas of law: the four types of murder and the two types of involuntary manslaughter. Even though there are only about 400 murders in Australia per year (compare this with the roughly 70,000 incidents of assault, 35,000 motor vehicle thefts, or 32,000 sexual assaults, for example), this law is so perfect for assessment questions conceptually that it is almost unheard of for a criminal law course not to assess it. So what are the four types of murder, and how do you spot them in a problem question?
Category 1: Intention to Kill
The first type of murder is what most people think of when considering what constitutes murder. Here, the accused demonstrates an intention to kill the victim, and does kill the victim. This requires the prosecution proving beyond a reasonable doubt that the accused in their own mind wanted to and in fact did kill someone. Unless the accused confesses that they desired to kill the victim it can be extremely difficult to prove an intention to kill. This is because the prosecution need to prove what was occurring in the mind of the killer. At times the motive of the killer, or their actions, can demonstrate this intention. For example, if after learning of infidelity someone plans to kill their partner or their partner's lover in some overt way, and then does so, this evidence can demonstrate an intention to kill. Alternatively, the actions of the accused can be sufficient, such as bringing a loaded gun to confront someone, and then shooting them.
It is rare for criminal law assignment or exam questions to have sufficient facts to prove this type of murder beyond a reasonable doubt. The reason is if you can prove this type of murder then the other types of murder will rarely be relevant. And remember, academics do not write assessment questions that even remotely reflect the real world. They instead craft questions that allow the assessment of multiple legal issues simultaneously.
Category 2: Intention to Cause Grievous Bodily Harm/ Serious Harm and Death Results
The second category of murder is exactly the same as the first, though with a lower threshold. Instead of having to prove that the accused intended to kill, in the second category the prosecution must prove that the accused intended to cause serious physical harm to the victim, and as a result of this harm the victim died. The definition of what constitutes the physical harm necessary to meet this element differs between the states. Some states like Queensland and New South Wales require that the accused intended to cause grievous bodily harm, which means permanent or serious disfigurement. Other jurisdictions like the Australian Capital Territory and South Australia require that the accused intended to cause serious harm and death resulted. Serious harm is typically defined as harm likely to endanger human life or harm that is significant and long-standing. Whether the requirement is grievous bodily harm or serious harm it is important to note that this is a high threshold. While fists have been found capable of causing grievous bodily harm, typically the victim must be significantly injured by the use of a weapon. Often students incorrectly rely on their own understanding of the word 'serious' instead of using the legal definition usually contained in the relevant criminal law statute.
It is very common for this type of murder to be assessed. Often a problem question involves a scenario where the accused is involved in another crime that involves violence, and while they did not have an intention to kill someone this occurs during the prosecution of the other crime (e.g. during an armed robbery). If the accused intentionally acts in an overtly violent way and someone dies as a result then you can be sure that this category of murder is relevant. It will often be necessary to give most attention to whether the accused had an intention to inflict the level of harm serious enough to meet the statutory definition. The best answers will outline arguments from the prosecution's and defence's perspectives before drawing a reasonable conclusion.
Category 3: Reckless Indifference to the Probability of Causing Death
The third category of murder occurs when a person acts in a way that demonstrates a reckless indifference to the probability of causing death. The main difference between this category and the first two is that here we no longer have to worry about what is occurring in the mind of the accused. This is because mental element is no longer intention, but recklessness. This means the accused need only be aware that their act/s or omission have a substantial risk of causing death. They need not have any intention to actually cause the victim any harm.
It is also very common for this type of murder to be assessed. Usually the problem question will involve the accused acting in a violent or at least criminal manner towards the victim, rendering them in need of immediate medical attention. Given it was the accused that put the victim in this state they then decide not to call an ambulance. This set of facts is usually sufficient to prove the third category of murder.
Category 4: Constructive Murder
Constructive murder means that the accused was involved in a criminal offence punishable by 25 years or life imprisonment, and someone dies in the prosecution of this other serious crime. Here the prosecution need only prove the elements of the other serious offence, and if someone dies the accused is guilty of this type of murder. For example, if the accused commits an aggravated sexual assault and in the commission of this offence the victim dies, so long as the prosecution can prove the elements of aggravated sexual assault then the accused is also guilty of this type of murder.
Conclusion
Often a problem question on murder requires discussing all four categories of murder (as well as manslaughter). The most common factual scenario involves the accused causing a serious injury in the course of committing another serious offence, and the person dies as the accused failed to call an ambulance. As each type of murder have the same physical elements it makes sense to discuss this first, before considering each type of murder one at a time.
For a summary of all of the relevant legal tests for each type of murder, manslaughter, and a discussion of the physical elements of murder, click the link below.
