In this article we discuss how a person can be charged with murder by causing the death of another person without physically causing that person’s death. This is often referred to a ‘constructive murder’ or ‘felony murder’.
It has been reported by major news outlets that on Saturday, 23 May 2020, a 19 year old man has died after falling from the fourth floor of an apartment complex in the Gold Coast after allegedly being attacked in the apartment he was staying in.
Police allege that the victim was trying to escape being robbed at knife point when he fell. He was found by a passer-by at around 3:15 am. It is alleged that there was a house party in the same apartment complex where the attendees were taking stolen prescription medicine and other illicit drugs allegedly including diazepam aka Valium.
Detective Superintendent Brendan Smith stated that “during the course of [being held at knifepoint], the victim has attempted to escape and has gone over the balcony and died … they were both viciously assaulted and as I said, the robbery has occurred at knifepoint.”
The three, who are not named in this article, are allegedly charged with one count of murder, two count of armed robbery and two counts of deprivation of liberty and their matters were mentioned today at the Roma Street Magistrates Court in Brisbane as reported by the ABC today.
In a separate incident in Sydney CBD on Friday, 22 May 2020, a woman has been found dead after allegedly falling from the 10th floor of the Hyatt Regency hotel on Sussex Street after allegedly being locked on the balcony by her boyfriend during an argument. Detectives from Strike Force Cumulus are continuing to forensically examine the crime scene which remains active.
The boyfriend is reported to have been arrested and taken to Day Street Police Station where he was later released while the matter is investigated further by the police. Police are reported to have said that the woman had a history of mental illness and have not determined whether she jumped or fell.
What is a murder charge in NSW?
Murder is generally committed where a person causes the death of another person under one of the following circumstances:
- an intent to kill;
- an intent to inflict grievous bodily harm;
- reckless indifference to human life;
- the commission of a crime punishable by life imprisonment or imprisonment for 25 years; or
- Constructive murder or “felony murder.
Existing caselaw on constructive murder
While the outcome of the Sydney investigation is yet to be finalised and the Gold Coast case is ongoing, the case of Royall v The Queen (1991) 172 CLR 378 deals with constructive murder and can be directly applied to these recent incidents.
- In this case, Royall was held to have murdered Kelly Healey as a matter of constructive murder.
- Kelly Healey (the victim) died when she fell from the bathroom window of her sixth floor flat.
- Healey had been in a days long fight with her partner, the accused Royall.
- Healey had temporarily moved out of the apartment and was staying with a friend and returned to the apartment the evening before she died.
- Royall and Healey engaged in a violent argument when Royall seriously assaulted Healy, which Royall admitted was the case.
- Chief Justice Mason states at  that “when account is taken of the extremely confined space within the bathroom, it was well pen to the jury to conclude that the applicant foresaw the probability that the deceased would fall or jump from the window in consequence of the ferocity of the alleged attack, in attempting to avoid that attack or to escape from the bathroom.”
- “As a matter of causation I have already concluded that falling from the window to escape from the bathroom in consequence of a well-founded apprehension of physical harm would be a natural consequence of the applicant’s conduct.”
How does this apply to the current cases?
The Gold Coast case is yet to be determined however, there are strong analogies which can be drawn between the case of Royall and this one. If the prosecution can show that the violent conduct of the alleged perpetrators left the victim with no choice but to jump out the window, then they would likely be held responsible for the death or injury of the victim.
In this case, the attackers are alleged to have brutally beaten the victim and held him at knife-point. The victim has subsequently fallen from the balcony to his death. It is not a far stretch to link the circumstances of Royall with this case and great care should be taken by the alleged offenders in their next steps moving forward.
The same can be said for the Sydney case which is still under investigation. Depending on the circumstances, the analogy could strengthen or weaken. Either it could be said that there was no causal link between the victim being locked out on the balcony and this was a horrible accident or there may be more to the story.
If the police can prove the actions of an alleged offender and those actions gave rise to a response by a victim that causes the victim’s death, there is a serious problem for the accused person or people and they could very well find themselves charged with murder, as seen in the Gold Coast case.
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