Doctrine of Transferred Malice

• If you commit an act with an intent to harm someone but accidentally harm a third party instead, your ‘intent’ will be transferred to this third party
  • Applies to assault and murder
  • Even though it was an accident, only relevant to intent.
    • Not needed for recklessness, as it requires the foresight of probably killing somebody.

Homicide problem solving list:

Discuss AR of murder:

• Voluntary act
• Causing death

Then consider whether there was the MR for murder

• Intention to kill or cause GBH
• Recklessness as to death or GBH

If the MR for murder is hard to prove, consider the alternatives:

• Unlawful and dangerous Act manslaughter; and / or

• Negligent act manslaughter; or

• Negligent manslaughter by omission

• Section of the Crimes Act can be ignored

  • DO NOT use the old definition of murder

Good will is not a defence, instead it can be proved to support the act was voluntary

MR is supported by the motive

Modern definition of murder:

Did D’s voluntary act cause the death of a human and did they have the requisite MR at that time?

• Complicated as there are more intravening events which arise, the defendant can use this to avoid culpability
• Under the common law, a foetus is not a ‘legal person,’ until ‘he or she is born in a living state.’
  • Why the destruction of foetus is a serious injury, causing serious injury to the mother rather than the killing of a foetus