What constitutes the crime of murder? The basic elements of murder

by The FindLaw Team

There probably aren’t many criminal offences that attract more attention than murder, with the crime being both compelling, yet frightening. At its most basic level, murder is defined as the intent to kill or do grievous bodily harm to another person resulting in death.

Murder as a basic principle

Firstly, murder can be proven in four ways:

  • killing with the intent to kill
  • killing with the intent of inflicting grievous bodily harm
  • reckless murder
  • killing while committing a crime of violence (felony murder).

Most States in Australia have a statutory definition of murder, and in the absence of an explicit definition of murder, we can look to the common law to give guidance on what are the constitute parts to the offence.

Using the definition found in s 18(1)(a) of New South Wales’ Crimes Act as a starting off point, reckless murder is defined as: 

“Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her…”

The basic principle of murder involves two overarching components: the act or omission causing death (actus reus), as well as intention and recklessness (mens rea). 

The intention to kill

In order for a person to be found guilty of murder, a person must have committed the act which causes death, along with having the intention and the foresight that their conduct might kill another person. Essentially, the intention to kill must demonstrate that the person has knowledge that death may probably be the consequence of the act. 

Recklessness causing death

Many States consider that recklessness causing death, as sufficient in proving mens rea for murder. For recklessness causing death to be successful, there must be proof of the actual state of mind of a person and there is a probable consequence of death resulting from the act in question. Furthermore, there also must be indifference from the person committing the act on whether death will be the result.

The intention of inflicting grievous bodily harm

Similar to the other elements, an intention of inflicting grievous bodily harm is enough for the offence of murder to be proven. However, a jury may also decide whether or not a person intended, or foresaw, that death would be the result from the acts.

Felony murder

Previously, the common law defined felony murder as: a person who has killed during the commission of a felony by use of personal violence is guilty of murder, if the use of violence inadvertently results in the death of another person.

However, most States have moved away from the former common law definition of felony murder because the intention to do grievous bodily harm is generally considered as sufficient in regards to murder. 



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