Constructive Murder

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Constructive murder (or 'felony murder' in the US) refers to death caused during an attempt to commit another crime. Constructive murder is incorporated within the normal murder provisions in s 18 (1) of the Crimes Act 1900 (NSW) (it is not explicitly labelled as constructive murder). The part concerning constructive murder is summarised below:

  • The mens rea requirement for murder will be automatically satisfied if the accused (or an accomplice) caused death during:
    1. an attempt to commit; or
    2. during the commission; or
    3. immediately after the commission,
  • of a crime punishable by imprisonment for life or for 25 years.

This means that, in the relevant circumstance, the prosecution does not need to prove intent or mens rea for murder - merely a proof of voluntariness is required.

  • Does not matter if the consequence was accidental: Ryan.[1]
  • No need for full-blown causation between the act and the death, only substantial contribution: Munro.[2]
  • No need for a risk of death to have been foreseeable to the accused: Munro.[3]

This article is a topic within the subject Criminal Laws.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 448-454.


  • Originally, any killing during the commission of an unlawful act was considered murder, no matter how unexpected or unintentional it was.
  • By the 18th century, the death had to be caused during the commission of another felony[4] to be considered constructive murder.
  • The doctrine was often critcised. Eventually, the scope was narrowed further to include only felonies which were ‘dangerous to life and likely in itself to cause death’.[5]

Relevant Cases

The provisions of constructive murder (they were a bit different back then) were discussed in Ryan:[6]

  • Facts: the accused was robbing a store. He was pointing a gun, loaded and cocked towards a store attendant. Attendant made sudden movement, gun discharged in an alleged reflex movement. The accused argued that he did not intend to kill.
  • Held: the only intent which needs to be proved is the intent for the 'base crime' during which the death occurred. Besides that, there is the need to prove 'voluntariness' (an actus reus component, follow the link for more info). In this case, voluntariness was proved because of the chain of events leading up to the discharging (ie, loading, cocking, pointing the gun).[7]

And also in Munro:[8]

  • Facts: the accused entered the flat of an old man to steal things. He hurt the man causing him some injuries. The man died two days later from pneumonia, which was partly caused because of the injuries. The accused was charged with constructive murder and argued that there was no causal connection between his act and the death.
  • Held: direct causal connection is not required between wounding and death, only that the injuries sustained were an operative and substantial contributing cause of death. Furthermore, there is no requirement to prove that the accused or a reasonable person would have realised that there was a risk of death.

In short, these cases entail that even an accidental killing during the commission of an offence can qualify as constructive murder, regardless of intent, foreseeability, or direct causation.


This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1967) 121 CLR 205.
  2. (1981) 4 A Crim R 67.
  3. (1981) 4 A Crim R 67.
  4. Criminal offences were once divided between 'felonies', which were serious offences, and 'misdemeanors', which were less serious offences. This distinction has been eroded in Autsralia.
  5. R v Brown and Brian [1949] VLR 177, 181.
  6. (1967) 121 CLR 205.
  7. The provisions were different back which led to a complicated discussion regarding whether the deceased was killed immediately or whether he was wounded first (there had to have been wounding in order for the base offence to be satisfied). It was solved by a 'superficial' explanation that there was a split-second of wounding before the deceased died.
  8. (1981) 4 A Crim R 67.
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