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The Issue of Constructive Murder

The High Court in IL v The Queen has set aside a unanimous decision of the NSW Court of Criminal Appeal on the issue of constructive murder.

A person commits constructive murder when, during or immediately after the commission of an offence carrying a maximum sentence of over 25 year, a person dies. In those circumstances the perpetrator is guilty of murder, even if the death was unintended or even accidental.

A good example is where a gun accidentally goes off during an armed robbery and kills someone. No one may have intended the death, but the circumstances mean that it would not be necessary to prove any intention.

In this case, the defendant was facing charges of Manufacturing a Large Commercial Quantity of a Prohibited Drug and a further charge of Murder. She was convicted of the drug charge but the trial judge directed a verdict of acquittal on the Murder.

The death occurred when the “meth lab” that the Crown alleged that the deceased and the accused were running exploded. Police alleged that the explosion was caused by the accused lighting a gas burner, which then caused the explosion. It was accepted by the crown that it could not establish who lit the burner, and that it may well have been the deceased who did so.

The High Court sat at a bench of seven and handed down four separate judgments. In summary, the majority held that it was necessary for the court to prove that it was the accused that actually lit the gas burner. This was as, in the present circumstances, “the deceased and the appellant did not do between them all the things necessary to constitute a crime of murder or manslaughter.”

The court was careful to say that it would have been a very different matter if a third person (for example, a neighbour) has been killed. Had that been the case there would have no doubt that the accused could have been guilty by way of constructive murder. It was that the deceased may herself have been the person that lit the burner that was the crucial factor.

On that basis the court agreed with the decision of the trial judge that the accused had to be acquitted of the offence of murder.

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Written by Andrew Tiedt on December 30, 2017

Andrew is a Partner in the Criminal Law team at Armstrong Legal, and is one of the small number of solicitors in New South Wales recognized as being an Accredited Specialist in Criminal Law. Andrew handles many of our most complex and difficult cases. He also appears in matters where experience and finesse are particularly important. View Andrew's profile

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