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

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When To Use This Checklist

This checklist can be used if:

  • It is alleged that the accused committed murder;
  • Recklessness is open on the evidence;
  • Manslaughter is not available as an alternative verdict; and
  • No substantive defences are open on the evidence.

Alternative Checklists

If recklessness is not open on the evidence, use Checklist: Intentional Murder.

If manslaughter is available as an alternative verdict, adapt a suitable checklist from Checklists: Manslaughter by Unlawful and Dangerous Act or Checklist: Negligent Manslaughter.

If a substantive defence has been left select the appropriate checklist:

 

Murder

Before you can convict the accused of murder, there are four elements that the prosecution must prove beyond reasonable doubt:

  1. The accused caused the victim’s death; and
  2. The accused’s acts were conscious, voluntary and deliberate; and
  3. The accused either:
    1. Intended to kill or cause really serious injury; or
    2. 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.

    Cause of Death

1. Has the prosecution proved that the accused caused the victim’s death?

Consider – Were the accused’s actions a substantial or significant cause of the victim’s death?

If Yes then go to 2

If No, then the accused is not guilty of Murder

Conscious, Voluntary and Deliberate Acts

2. Has the prosecution proved that the accused’s actions that caused the victim’s death were conscious, voluntary and deliberate?

If Yes then go to 3.1

If No, then the accused is not guilty of Murder

State of Mind

3.1. Has the prosecution proved that at the time the accused did the acts that caused the victim’s death, s/he intended to kill or to cause really serious injury?

If Yes then go to 4

If No then go to 3.2

3.2. Has the prosecution proved that at the time the accused did the acts that caused the victim’s death, s/he knew that his/her acts would probably cause death or really serious injury?

Consider – Did the accused know that death or really serious injury were likely to result from his/her acts?

If Yes then go to 4

If No, then the accused is not guilty of Murder

Defences

4. Has the prosecution proved that the accused acted with no lawful justification or excuse?

If Yes then the accused is guilty of Murder (as long as
you also answered Yes to Questions 1, 2 and either 3.1 or 3.2)

If No, then the accused is not guilty of Murder

 

Last updated: 1 November 2014

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)

7.2.1.3 - Charge: Intentional and Reckless Murder