Murder

To be convicted of murder, the prosecution must prove that:

the victim has died, and
the defendant's conduct has contributed significantly to the death (it need not be the sole cause, or even the main cause, of death), and
the defendantintended to kill the victim or inflict grievous bodily harm, or knew that it was probable that their conduct would cause death or grievous bodily harm, or is recklessly indifferent to the danger they have placed the victim in.

Murder carries a penalty of life imprisonment [Criminal Law Consolidation Act 1935 (SA) s 11]. This is automatically imposed upon a finding of guilt.

It also carries a mandatory minimum non-parole period of 20 years [Sentencing Act 2017 (SA) s 47(5)(b)]. This period may be reduced under s 48(2) of the Sentencing Act 2017 (SA) in certain circumstances.

Causing death by an intentional act of violence

It is an offence of murder to cause death by an intentional act of violence that occurs during the course of committing a crime [Criminal Law Consolidation Act 1935 (SA) s 12A]. This is sometimes known as felony murder or constructive murder.

The offence occurs when a person:

commits an intentional act of violence
while acting in the course or furtherance of a major indictable offence punishable by imprisonment for 10 years or more
which results in the death of another.

Murder by omission

While murder is usually the result of a positive act, the law also recognises that a person may be guilty of murder because of something they did not do. This is known as murder by omission and it occurs where the defendant is under a duty to perform a particular act and knows (and consciously accepts) that their failure to act would probably result in death or grievous bodily harm.

Examples of where a person may have a positive duty to act are rare but include:

where parents allow a child in their care to starve to death (R v Gibbins (1918) 13 Cr App R 134)
where a defendant has placed a person in danger as a result of a wrongful act they have committed, and accordingly are under a duty not to leave the person in danger. In R v Taber (2002) 56 NSWLR 443 the defendants assaulted, bound and gagged the victim (an elderly woman living alone) and left her in her house to die. Despite having called emergency services (which was treated as a hoax) they made no further effort to ensure their victim was given assistance, with the result that she died of dehydration some 9 to 11 days after they left her. It was open to the jury to find the defendants guilty of murder by omission and it did. However, these convictions were later overturned on appeal and at a re-trial they were found guilty of the alternative charge of manslaughter.

Conspiring or soliciting to commit murder

It is an offence to conspire to murder or to solicit the murder of another person [Criminal Law Consolidation Act 1935 (SA) s 12]. This also carries a penalty of life in prison.

Attempted murder

A person who takes positive steps (or fails to act when under a duty to do so) intending to kill another without lawful excuse may be found guilty of attempted murder if the victim survives [Criminal Law Consolidation Act 1935 (SA) s 270A; Penney v R [1998] HCA 51 at [29]]. The penalty for attempted murder is life in prison or a lesser term of imprisonment [Criminal Law Consolidation Act 1935 (SA) s 270A(3)].

See further: Defences

Murder : Last Revised: Tue Mar 25th 2025
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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