Statutory Murder, otherwise known as constructive murder, is when an accused person unintentionally causes victim’s death by an act of violence in the course or furtherance of certain violent crimes, the necessary elements of which include violence for which a person may be sentenced to life or to imprisonment or a term of 10 years or more shall be liable to be convicted of murder, as though he had killed that person intentionally.
To be convicted of common law murder, a person must have the intention to kill the victim or to inflict really serious injury (i.e. firing a gun with the intention to kill).
To be convicted of statutory murder, a person need only have the intention to commit a crime of violence, and, during the commission of the crime, the person’s actions cause the victims death (i.e. a stray bullet from a warning shot hitting and killing the victim during an armed robbery).
The elements of constructive murder are as follows:
The victim was killed
The victims’ death was caused unintentionally
The victims’ death was caused by accused/co-accused
The death was caused by an act of violence; and
The act was conscious, deliberate and voluntary
The act of violence includes physical force, and also intimidation or seeking to intimidate by the exhibition of physical force or menaces: R v Butcher [1986] VR 43.
Where two persons embark on a joint enterprise, each is liable for acts done in pursuance of that joint enterprise, including liability for unusual consequences if they arise from the agreed joint enterprise: R v Anderson & Morris [1966] 2 QB 110.
Whether one joint venture is liable for the acts of another depends on whether the acts are done as part of the joint enterprise and are of a type which the joint venturer foresaw but did not necessarily intend: Chan Wing-Siu v R.
What falls within the scope of a common purpose is to be determined subjectively: McAuliffe v R (1995) 130 ALR 26 (HCA). The prosecution must establish that the accused foresaw the likelihood of a crime other than that which is planned and with that foresight, participated in the joint venture regardless. It is not necessary that the other parties to the joint purpose foresaw the second crime.
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