To convict on a charge of murder the court must establish that:
- the victim has died; and
- an act of the defendant’s has contributed significantly towards the death — it does not have to be the sole cause, or even the main cause of death; and
- the defendant intended to kill the victim or inflict grievous bodily harm, or knew that it was probable his/her act would cause death or grevious bodily harm, or puts another person in danger with reckless indifference to the life of the person.
Murder carries a penalty of life imprisonment [Criminal Law Consolidation Act 1935 (SA) s 11].
Causing death by an intentional act of violence
It is an offence of murder to cause death by an intentional act of violence [s 12A Criminal Law Consolidation Act 1935]. The offence occurs where a person:
- commits an intentional act of violence;
- while acting in the course or furtherance of a major indictable offence punishable by imprisonment for 10 years or more (other than abortion);
- which results in the death of another.
Murder by omission
Whilst murder is usually the result of a positive act, the law also recognises that a person may be guilty of murder because of something they did not do. This is referred to as murder by omission and it occurs where the defendant is under a duty to perform a particular act and knows (and consciously accepts) that their failure to act would probably result in death or grevious bodily harm.
Examples of where a person would have a positive duty to act are rare but include:
- where parents leave a child in their care to starve to death (R v Gibbins (1918) 13 Cr App R 134);
- where a defendant has placed a person in danger as a result of a wrongful act they have committed – in such a situation they are arguably under a duty not to leave the person in danger.In R v Taber (2002) 56 NSWLR 443 the defendants assaulted, bound and gagged the victim (an elderly woman living alone) and left her in her house to die. Despite having made a phone call to emergency services (which was treated as a hoax) they made no further effort to ensure their victim was given assistance, with the result that she died of dehydration some nine to eleven days after they left her. It was open to the jury to find the defendants guilty of murder by omission and they did. However, these convictions were later overturned on appeal and at a re-trial they were found guilty of the alternative charge of manslaughter.
Conspiring or soliciting to commit murder
Under s 12 of the Criminal Law Consolidation Act 1935 (SA) it is an offence for any person to conspire to murder or to solicit the murder of another person.
Maximum penalty: life imprisonment
See further: Defences
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.