Homicide+and+Actus+Reus+-+The+Categories+of+Unlawful+Homicide

Murder
There are four categories of murder under statute and common law in Victoria:

**Intentional Murder**
In Victoria, intentional murder is defined at common law with a penalty stipulated in [|s3]of the Crimes Act 1958 (Vic). Intentional murder is defined at common law as being circumstances where a person, without lawful excuse or mitigating circumstances sufficient to reduce the crime to voluntary manslaughter, causes the death of another with the intention to kill or cause grevious bodily harm.

The law draws a distinction between an intention to kill and knowledge that death will probably ensue as a consequence of the accused's conduct.
 * Intention and foresight of probability of death**

**Reckless Murder**
Reckless murder is defined at common law as being circumstances where a person without lawful excuse of mitigating circumstances sufficient to reduce the crime to voluntary manslaughter, causes the death of another while being reckless as to killing or causing grevious bodily harm. The distinction here between intentional and reckless murder, is that with reckless murder, the defendant will have turned his mind to the possible risk and continued the course of action anyway.

To prove recklessness, the prosecution must show, beyond reasonable doubt, that the defendant adverted his mind to the probable risk of causing death or grevious bodily harm as a result of his or her actions or omissions. The test is subjective and takes into consideration the defendant's age, background, education, social standing, current emotional state, state of sobriety etc.
 * Test of Eventuality**

According to Boughey v R, the courts required that the defendant foresaw or adverted to a probable risk, which has been equated to a 'substantial' or 'significant' risk of a certain event.

In R v Pemble, the defendant produced a gun with the intention of scaring the victim. In the course of this action, the defendant shot the victim. The defendant argue that he was merely wanting to scare her, while the prosecution argued that he had been recklessly indifferent to the consequences and thus was liable for reckless murder.

In R v Crabbe the court held that to be guilty of reckless murder, the defendant must have adverted to the probability (as opposed to mere possibility) of death occuring as a direct result of their acts or omissions. Also, the defendant's indifference to the consequences is not relevant, all that matters is the defendant's knowledge that those consequences would probably occur.

**Statutory Constructive Murder**
Statutory constructive murder will apply where the accused does not possess the requisite mens rea, but it is imputed because of the circumstances under which the killing occurred. The essential features are that: This is covered under [|s3A] of the Crimes Act 1958 (Vic). Following the decision of R v Butcher, there appears to be few offences, apart from robbery and armed robbery, that could serve as a predicate for a successful prosectuion under s3A.
 * 1) the accused caused the death of another person;
 * 2) in the course of furtherance or committing;
 * 3) a serious offence

**Common Law Constructive Murder**
Common Law Constructive murder is unique to the states of Victoria and South Australia and arises where a person causes the death of another by an act of violence committed during the course of resisting a lawful arrest or escaping from lawful custody.

Motive
Motive to kill does not necessarily amount to mens rea for murder. However, it is recognised that motive may well be a highly relevant circumstance in determining whether the requisite mens rea was present. In Hyam v DPP, Lord Hailsham recognises that motive "is the stimulus which gives rise of the intention". Motive is therefore relevant in proving or rebutting a charge of murder, though it is not required that the prosecution prove motive in order to establish the offence.

Transferred Malice (see topic 1)
According to R v Saunders if the accused acts with the intention to kill another human being, it is immaterial that he or she mistakenly kills another person. This is largely because the accused had the requisite intention to harm A similar situation arose in R v Martin, in which it was found that even if the accused had not chosen a victim and shoots at random into a crowd, then he would be liable for intentional murder, as at the time of the act the death of someone was substantially certain to occur.

Intention Must be Subjective
The concept of intention is always subejctive; it is immaterial whether or not a reasonable person, in similar circumstances, would have had such a state of mind. That said, whether or not it was objectively reasonable for the defendant to have such a statement of mind is an important evidentiary factor for the jury to consider in determining whether it was actually held by the defendant. The more objectively unreasonable it is for the defendant to deny they held the requisite mens rea the more likely that the jury will reject their claim.