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7.2.1.3 - Charge: Intentional and Reckless Murder

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[This charge should be used if both intentional and reckless murder are left to the jury.

If reckless murder has not been left, see Charge: Intentional Murder.]

If only reckless murder is issue, adapt this charge accordingly.]

 

The elements

I must now direct you about the crime of murder. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the accused caused the victim’s death.

Two - the accused’s acts were conscious, voluntary and deliberate.[1]

Three - that at the time the accused did the acts that caused the victim’s death, s/he either:

Four - that the accused killed the victim without lawful justification or excuse.

I will now explain each of these elements in more detail.

Cause of death

The first element that the prosecution must prove is that the accused caused the victim’s death. [2]

[If this element is not in issue, add the following shaded section.]

In this case it is not disputed that NOA [insert relevant causal acts] and doing so caused NOV’s death. You should therefore have no difficulty finding this element proven.

[If this element is in issue, add the following shaded section and the relevant additional sections.]

To determine if this element has been proven, you must first determine what acts NOA committed. You must then determine whether [any of] those acts caused NOV’s death. [3]

If the cause of death is not disputed, but the accused denies committing the relevant acts, add the following shaded section

In this case it is not disputed that [insert relevant causal acts] caused NOV’s death. However, the defence contends that NOA did not commit those acts. For this element to be met, you must be satisfied, beyond reasonable doubt, that it was NOA who [insert relevant causal acts].

[If cause of death is in issue because of multiple possible causes (whether combined or competing), add the shaded section.]

[If the cause of death is disputed due to intervening acts, a failure to intervene, or the victim’s own conduct, use the shaded sections below instead]

In this case you have heard evidence that NOV’s death [resulted/may have resulted] from a number of [describe basis of uncertainty, e.g. possible, competing, inconsistent etc.] causes. [Insert relevant evidence and causal explanations.]

The law says that for NOA’s acts to have caused NOV’s death, they do not need to have been the only cause of that result, or the direct or immediate cause. You may find that his/her acts caused the death if they were a substantial or significant cause of that result.

You should approach this question in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

[If causation is an issue because of intervening acts, or a failure to intervene, add the following shaded section.]

In this case you have heard evidence that NOV’s death did not immediately follow the alleged acts of the accused, and that [describe intervening acts] [may have] occurred in between.

The law says that for NOA’s acts to have caused NOV’s death, they do not need to have been the only cause of that result, or the direct or immediate cause. You may find that his/her acts caused the death if they were a substantial or significant cause of that result.

In making this determination, you need to decide whether it was the accused’s acts which caused the death, or whether those acts merely provided the setting for the later acts of [insert intervening acts], which were the true cause of death. If NOA’s acts only provided the setting, then s/he did not cause the death, and you must find him/her not guilty of murder.

You should approach this question in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

[If the victim’s own acts could have caused his or her own death, add the following shaded section.]

[This direction has been drafted for use in cases in which the victim could be seen to have caused his or her own death while attempting to escape the violence of the accused. While it could be adapted for use in other cases where the accused may have indirectly caused the death, care should be taken in doing so.

This charge should not be given where a simpler "intervention" direction can be given (see above). It should also not be given where NOA purposively compelled NOV to commit the causal act.]

In this case you have heard evidence suggesting that NOV’s death was only indirectly caused by the acts of the accused. [Insert relevant evidence].

The law says that for an accused’s acts to have caused the victim’s death, they do not need to have been the direct or immediate cause of that result. This element can be met even if NOA indirectly caused NOV’s death.

However, you can only find the accused responsible for the indirect results of his/her acts if the prosecution can prove two matters to you, beyond reasonable doubt.

First, the prosecution must prove that NOA’s acts caused NOV’s death. In this case, that means that the prosecution must prove that NOA’s acts were a substantial or significant cause of [identify immediate causal event; eg. NOV fleeing NOA’s violence], which in turn caused NOV’s death.

You should approach this question in a common sense manner, bearing in mind that your answer affects whether or not the accused is held criminally responsible for his/her actions.

Secondly, [4] the prosecution must also prove that the victim acted out of a well-founded or reasonable fear of the accused, and that the victim’s acts of self-preservation were a natural consequence of the accused’s conduct.

Here, the evidence was [describe evidence relevant to the reasonableness of NOV’s response]. It is for you to determine if NOV’s reaction was reasonable and well-founded. If you find that NOV over-reacted to NOA’s conduct, then this element will not be satisfied, and you must find NOA not guilty of murder.

Voluntariness

The second element that the prosecution must prove is that the accused’s causal acts were conscious, voluntary and deliberate. These words each have a special meaning in law, which I will briefly explain.

The term "conscious" excludes the acts of an unconscious person, such as a sleepwalker, or a person rolling over in bed.

The term "voluntary" directs you to the requirement that the act which killed the deceased must be a "willed" act, that is, one resulting from the control by the accused of his/her own actions. This excludes the acts of a person operating in one of a number of rare mental states where the mind loses control of the body’s actions.

The term "deliberate" excludes accidental acts, such as the consequences of falling over or fumbling an item.

[If this element is not in issue, add the following shaded section.]

In this case there is no issue that [if/when] NOA [describe relevant causal acts, e.g. "pointed and discharged the gun"] s/he did so consciously, voluntarily and deliberately, so you should have no difficulty finding this element proven.

[If voluntariness is in issue, add the following shaded section.]

In this case the defence argued [5] that the prosecution has failed to prove that the accused’s causal acts were [select term(s), e.g. conscious, voluntary, deliberate].

The defence submitted that these acts were committed [describe and discuss the relevant form of involuntary conduct raised as an issue in the trial, such as accident; reflex acts; physically compelled acts; acts performed in an automatic state.] The prosecution denied that this was the case. [Insert relevant prosecution arguments and/or evidence.]

It is for the prosecution to prove, beyond reasonable doubt, that NOA was acting consciously, voluntarily and deliberately when s/he committed the acts that you find caused NOV’s death. If you are not satisfied that this was the case, then you must find NOA not guilty of murder.

[If the jury must determine voluntariness by reference to its findings on causation, add the shaded section.]

I have instructed you that it is for you to determine which if any act(s) of the accused caused NOV’s death. If you find that [describe narrow view of causal acts] was the common-sense cause of death, then it is the deliberateness[6] of that act that you must consider. If you find that [describe broader view of causal acts] was the common-sense cause of death, then it is the deliberateness of those acts that you must consider.

State of Mind of the Accused

The third element relates to the accused’s state of mind. The prosecution must prove, beyond reasonable doubt, that at the time the accused did the acts that caused the victim’s death, s/he either:

When I say "really serious injury", I am not using a technical legal phrase. These are ordinary English words, and it is for you to determine what this phrase means to you as jurors.

The two mental states I just mentioned are alternatives. This element will be satisfied as long as the prosecution can prove one of them beyond reasonable doubt. I will now examine each in turn.

Intention to kill or cause really serious injury [8]

This element can be satisfied if the prosecution can prove that the accused intended to kill the victim, or to cause him/her really serious injury.

In this case the prosecution submitted that this was the case. [Insert relevant evidence and/or arguments]. The defence responded [insert relevant evidence and/or arguments].

It is for you to decide whether the prosecution has proven, beyond reasonable doubt, that the accused had this intention. If s/he did, then this third element will be met.

Knowledge of a probable result

A second way this element can be satisfied is by proof that the accused committed the relevant acts knowing that death or really serious injury would probably result. That is, NOA knew that death or really serious injury were likely to result from his/her acts.

It is not sufficient for NOA to have known that it was possible that death or really serious injury might result from his/her actions. S/he must have known that those consequences were probable.

In determining this part of the test, you must be satisfied that NOA him/herself actually knew of the risk of death or really serious injury. It is not enough that you or a reasonable person would have recognised those risks in the circumstances.

In this case, the following evidence is relevant to your assessment of NOA’s state of mind: [identify relevant evidence and the inferences to be drawn from that evidence].

Timing

[If the jury must consider different mental states associated with different causal acts, use this shaded section.]

For this element to be satisfied, the accused must have intended to kill NOV or cause him/her really serious injury or known that NOV would probably die or suffer really serious injury at the time that s/he committed the act or acts that you find caused NOV’s death.

As I have mentioned, in this case the cause of NOV’s death is disputed. The prosecution contends that [insert relevant causal acts] caused NOV’s death, and that NOA had the necessary mental state when s/he committed those acts. However, the defence submits that [insert relevant causal acts] was the cause of NOV’s death, and that at that point in time NOA did not have the necessary state of mind because [insert relevant evidence and/or submissions].

Before you can determine whether this third element has been satisfied, you must therefore first decide precisely which act or acts caused NOV’s death. You must then determine whether NOA held a required mental state at the time that s/he committed that act or those acts.

Inferring states of mind

[If proof of the accused’s mental state depends on the drawing of inferences, add the following shaded section.]

As I have stated, the prosecution contends that you should infer from the evidence that NOA had the appropriate state of mind at the relevant time.

A person’s intention at the time s/he commits an offence may be inferred from what s/he said and did, and also from what s/he failed to say and do. You should look at all of NOA’s proven actions before, at the time of, and after the alleged offence. All of these things may help you to determine what NOA’s intention was when s/he committed the acts you have decided caused NOV’s death.

In particular, the prosecution has asked you to consider [describe evidence]. The defence has asked you to consider [describe evidence].

You will remember what I told you about inferences earlier [9] In this context, those directions mean that you can only infer that NOA intended to kill NOV or cause him/her really serious injury or infer that s/he knew that such harm was probable, if you are satisfied beyond reasonable doubt that it is the only inference open from the facts you have found. If any evidence causes you to have reservations about drawing such an inference, the benefit of your doubts should go to the accused.

[If the jury might infer knowledge of risk relevant to recklessness by an objective test, add the shaded section.]

In determining NOA’s awareness of risk, you [can/have been asked to] draw inferences from the risk that [you/the reasonable person] would have foreseen in the accused’s situation. I must warn you that although this is a legitimate step in reasoning towards a conclusion about NOA’s state of mind, you must not treat those factors as decisive of the issue. It is not enough that you or any other person would have recognised those risks in the circumstances. You must be satisfied that NOA him/herself actually knew of the risk of death or really serious injury.

Absence of Lawful Justification or Excuse

Even if the first three elements are proven, the law states that a person is not guilty of murder if the killing was done with a lawful justification or excuse, such as in self-defence or under duress.

[If no such issue is raised on the evidence, add the following shaded section.]

There is no question in this case of any such lawful justification or excuse, so that aspect can be disregarded.

[If any defences are open on the evidence, insert directions from the relevant topics here (see Part 8: Victorian Defences).]

Application of Law to Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise, before you can find NOA guilty of murder the prosecution must prove to you beyond reasonable doubt:

One — that NOA committed acts which caused NOV’s death; and

Two — that NOA’s acts were conscious, voluntary and deliberate; and

Three — that NOA EITHER

Four – that NOA had no lawful justification or excuse for killing NOV.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of murder.

 

Notes

[1] As most cases of murder involve a number of acts by the accused, the term “acts” is used throughout this charge. If there is only one relevant act, this will need to be changed

[2] If alternative forms of accessorial liability are in issue, this section will have to be modified. See Part 5: Complicity for further information.

[3] In some cases the jury may also need to determine whether the victim was a living human being when the relevant acts were committed: see the Intentional or Reckless Murder.

[4] This part of the direction will have to be substantially modified if used in cases not involving escape-based harm.

[5] If the defence did not raise the issue of voluntariness, but it arises on the evidence, this section will need to be modified accordingly.

[6] This issue is most likely to arise where accident is the issue. If another form of involuntariness is in issue this charge should be adapted.

[7] This section of the charge has been drafted for use in cases where the accused’s actions were directed towards the victim. If the jury could find that the accused intended to harm someone else, or was reckless about harming someone else, references to the victim should be replaced with "some person", and the following paragraph should be added: "The prosecution does not need to prove that the accused intended to kill or injure NOV him/herself, or knew that NOV would probably die or suffer really serious injury. This element will be satisfied if NOA intended to kill or cause really serious injury to any person, or knew that it was probable that somebody would be killed or really seriously injured by his or her acts."

[8] If the prosecution only alleges reckless murder, without presenting intentional murder as an alternative basis, this charge will need to be modified.

[9] This charge is based on the assumption that the judge has already instructed the jury about inferences. It will need to be modified if that has not been done.

Last updated: 3 December 2012

See Also

7.2.1 - Intentional or Reckless Murder

7.2.1.1 – Charge: Intentional Murder

7.2.1.2 - Checklist: Intentional Murder (without Self-Defence)

7.2.1.4 - Checklist: Intentional and Reckless Murder (without Self-Defence)