Criminal Liability in a Murder Case under Australian Law

The article discusses the criminal liability of Peter, Rachel, Stuart, and Louise in a murder case under Australian law. It explains the relevant sections of the Crimes Act 1958 and the elements of criminal offence. It also discusses the defences available under the law.

Criminal Law

Table of Contents
Criminal Law.............................................................................................................................1
Introduction................................................................................................................................3
Issue............................................................................................................................................3
Rule............................................................................................................................................3
Application.................................................................................................................................5
Conclusion..................................................................................................................................6
References..................................................................................................................................7

Introduction
Rachel was having an affair with their neighbour Stuart, who is a single father having a 16
year old daughter named Louise. Rachel felt guilty about the affair and told Stuart to finish it.
Stuart felt sad and told her that, he was going to tell everything to her husband Peter, after
which, Rachel went out enraged. Stuart called Rachel on her mobile in distress and discussed
a deal with her that if she pay $2000, then he would not tell anything to Peter to which Rachel
agreed and transferred the money instantly. However, she was not aware that Stuart already
had sent graphic footage of both of them together to Peter through email. In the evening,
when Peter saw the footage, he took a knife and ran towards the house of Stuart. Stuart’s
daughter was outside her house when she saw Peter coming towards her; she quickly ran to
the shed in the backyard of the house and grabbed the rifle of her father. As soon as Peter
came to the front door of her house and Stuart opened the door, she came from the back and
pulled the trigger at him and Peter died on the spot. The bullet bounced back and seriously
injured Stuart’s arms as well.
Issue
Are Peter, Rachel, Stuart and Louise are all criminally liable and if yes, what are their
criminal liabilities?
Rule
Under the Crimes Act 1958, the elements of criminal offence except those considered as
absolute liability requires mental as well as physical elements which are referred to as
Mensrea and Actusreas respectively. In this context, Mensrea involve certain types of mental
conditions such as intention, recklessness and negligence. The intention is to get involved in a
particular behaviour decisively. The recklessness is to get engaged in a particular kind of

behaviour without considering risks (Austlii, 2018). The negligence is to act in a careless
manner without considering its impact upon others. The ActusReas must be a voluntary
physical act and it involves acts, omissions and permanent behaviour.
The elements of an offence require applying objective and subjective tests. The objective
tests consider the feelings, thoughts or experience of a reasonable person in that situation
while subjective tests consider what actually is felt experienced or thought by the person
concerned (Austlii, 2018).
Children under a certain age are considered as incapable of taking mental or physical actions
necessary to be considered as a crime. The children above the age of 14 years are supposed to
be responsible for the actions taken by them.
Section 3 of Crimes Act 1958 provides the provisions of punishment for murder, the
definition of murder provided in the common law states that when an individual having sound
memory and of the age capacity to take decision kills a reasonable person unlawfully and
with malice intention and the death occurred between a year and a day (Austlii, 2018).
In order to prove mensrea behind a murder, malice intention either expressed or implied is
required to be proved. There are various forms of malice aforethought which are intentional,
reckless and constructive. In this context, intentional murder is known as express malice,
wherein, mensrea and actusrea must co-exist. Reckless murder is to kill a person with
intentional carelessness. In constructive murder, the legislation has to construct the relevant
mental element.
The amendments in the Crimes Act 1958 had introduced statutory defences to murder which
are compulsion and sudden emergency and are considered as self-defence. Subdivision 1AA
of the Crimes Act 1958 defines self-defence as a general criminal defence and not specific to
homicide (Austlii, 2018). Section 322K of the Act states that a person cannot be held guilty

of an offence if the person acted in self-defence believing it to be essential for self-defence
and is a reasonable response in that situation as perceived by them.
Section 20 of the Act states that when a person makes a threat to kill a person with an
intention to terrorize the other person is held guilty of a criminal offence (Austlii, 2018).
Section 77A of the Act is related to the home invasion when an individual enters the home of
other person having an offensive weapon with an intention to steal or commit offence is
punishable under criminal law (Austlii, 2018).
Section 87 of the Act considers a person guilty of blackmail, if he or she makes unjustified
demand with threats with intent to gain for themselves or loss to others with reasonable
grounds to make such demand.
Section 322R of the Act holds that a person cannot be held guilty if the conduct carried out
by him or she is in situation of sudden emergency (Austlii, 2018).
Application
Under Criminal law of Australia, Peter can be held liable under section 77A of the Act
because he ran into the premises of Stuart with an intention to kill him having a kitchen knife
in his hand. However, the reason behind his rage was the provocation that was given to him
by the email of graphic footage sent to him by Stuart, it cannot be considered as a defence
against the intention to murder.
Rachel can be held criminally liable for murder because she was not there at the time of
murder and had no information about the matter to be getting that worsened. Stuart asked her
to give $2000 and she transferred believing that he will not tell anything to Peter as promised.
However, she can be held liable under Section 20 of the Act because she made a threat to kill
Stuart with an intention to terrorize him so that he would not disclose anything to her
husband.

Stuart can be held criminally liable criminally under Section 87 of the Act because firstly, he
blackmailed Rachel to transfer $2000 in his account, otherwise he would tell her husband
about their affair. Secondly, he recorded footage with Rachel and sent it to Peter even after
promising her not to disclose anything before her husband, which also comes under criminal
intention (Austlii, 2018).
Louis was a sixteen year old girl and she was supposed to be responsible for the actions taken
by her. Under law, she will be considered as mature enough to act responsibly (ICLA, 2018).
As soon as she saw Peter came running towards her with a knife in his hand, she frightened
and brought rifle from the backyard. She shot Peter to defend her father because she believed
that if she would not have pulled the trigger, Peter might have had killed her father. So, she
cannot be held guilty under section 322R of the Act as she carried out the act in the situation
of unexpected or extraordinary emergency (Victorinan Government, 2018). However, due to
the bounce back of the bullet, her father also got injured severely, which shows that she was
not intentionally targeting Peter but acted in defence to her father.
Conclusion
The overall matter involves Peter, Rachel, Louis as well as Stuart. Peter can be held
criminally liable under Section 77A of the Act for home invasion with an intention to kill or
harm Stuart. Rachel can be held liable under Section 20 of the Act for threatening to kill
Stuart. Stuart can be held liable under Section 87 of the Act for blackmailing Rachel to give
him $2000 otherwise he would disclose the information to her husband. Louis cannot be held
liable criminally because she acted in defending her father and had no intention to kill Peter
but, believed it to be correct under the circumstances of sudden or extraordinary emergency
otherwise Peter would have killed her father.

References
Austlii. (2018). Crimes Act 1958. Retrieved from Austlii.edu.au :
http://www5.austlii.edu.au/au/legis/vic/consol_act/ca195882/
Austlii. (2018). Crimes Act 1958. Retrieved from Austlii.edu.au:
http://www.austlii.edu.au/au/legis/vic/hist_act/ca195882.pdf
Austlii. (2018). Crimes Act 1958 - Sect 20 Threats to kill. Retrieved from Austlii.edu.au:
http://www5.austlii.edu.au/au/legis/vic/consol_act/ca195882/s20.html
Austlii. (2018). Crimes Act 1958 - Sect 3 Punishment for Murder. Retrieved from
Classic.austlii.edu.au :
http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s3.html
Austlii. (2018). Crimes Act 1958 - Sect 322R Sudden or Extraordinary Emergency. Retrieved
from Austlii.edu.au :
http://www5.austlii.edu.au/au/legis/vic/consol_act/ca195882/s322r.html
Austlii. (2018). Crimes Act 1958 - Sect 77A Home Invasion. Retrieved from Austlii.edu.au :
http://www5.austlii.edu.au/au/legis/vic/consol_act/ca195882/s77a.html
Austlii. (2018). Crimes Act 1958 - Sect 87 Blackmail . Retrieved from Austlii.edu.au:
http://www5.austlii.edu.au/au/legis/vic/consol_act/ca195882/s87.html
ICLA. (2018). Crimes Act 1958 . Retrieved from Icla.up.ac.za :
http://www.icla.up.ac.za/images/un/use-of-force/western-europe-others/Australia/
Victoria/Crimes%20Act%20Victoria% 201958.pdf
Victorinan Government. (2018). Crimes Act 1958 Part I—Offences. Retrieved from
Legislation.vic.gov.au :
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/
LTObjSt10.nsf/

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