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Bindon, Prue --- "The Case for Felony Murder" [2006] FlinJlLawRfm 9; (2006) 9(2) The Flinders Journal of Law Reform 149

THE CASE FOR FELONY MURDER

PRUE BINDON[†]

This paper examines what is commonly known as ‘felony murder’, a feature of the law of murder in all but one Australian jurisdiction. Felony murder has been the subject of long and forceful criticism from legal scholars and practitioners across numerous common law nations. The criticism is directed towards the fact that felony murder permits a conviction of murder based on a person killing another during, or in the furtherance of, the commission of another serious crime without requiring the prosecution to show that the offender had the ‘mens rea’ otherwise required for murder; namely the intent to kill or inflict grievous bodily harm or actual foresight of those consequences.

This paper argues that the criticism levelled against felony murder is unwarranted and defends the legitimacy of the rule. This is sought to be done, first, by challenging the bases on which the criticism against felony murder commonly proceeds, grouped into the ‘descriptive’ and the ‘normative’ arguments. Second, the paper examines the rationale for felony murder in its ability to look holistically at an offender’s conduct in creating situations of critical danger or violence which lead to a person’s death. Finally the paper rejects the contention that abolishing felony murder would have no practical effect and argues that the rule can make a difference to murder prosecutions. The paper concludes that, to the extent that Australian jurisdictions are prompted to review the law of murder, as England is currently doing or as part of a broader codification process prompted by the Model Criminal Code, there are sound bases for retaining felony murder as part of our substantive criminal law.

I WHY THE MURDER LABEL MATTERS

It has been said that one of the fundamental tasks of the criminal law is not merely to designate certain types of conduct as ‘criminal’ but also to grade the seriousness of that conduct in relation to other criminal acts, and attach labels which accurately reflect that rating of gravity.[1] The label of the offence then indicates to the criminal justice system the appropriate penalty thresholds to observe in imposing punishment on an offender. Importantly, the label also signals to the community the proportionate level of moral condemnation with which it should respond to an offender.[2] In this manner, the label itself becomes a critical part of the offender’s punishment along with the sentence.

While the meaning of the label attached to a conviction may not be significant for every offence, it can scarcely be denied in the case of murder. Since its inception, the label ‘murder’ has signalled the most heinous form of homicide. It is regarded as one of the most serious offences of the criminal law and carries one of the highest stigma ratings.[3]

The significance attached to the murder label has been evident in recent times through the negative response shown to the proposal that the categories of manslaughter and murder might be abolished and replaced by a single umbrella offence of ‘unlawful homicide.’[4] The proposal envisaged that grading the seriousness of an offence could be shifted entirely to the sentencing stage, leaving the degree of an offender’s culpability to be reflected purely in the particular sentence imposed.[5] This proposal has been firmly rejected,[6] evidently because the stigma associated with the murder label is so significant and an instrumental element in the punishment of the offender. As a former Attorney-General of New South Wales once described, murder is

an ancient and powerful word, widely understood by the public, carrying the strongest possible overtones of moral condemnation. In our culture, to describe someone as a ‘murderer’ is to employ the most bitterly and effectively stigmatising epithet available in the language.[7]

Given the stigma associated with the murder label it is not surprising that there is caution about burdening an offender with the label unless he or she is clearly seen to warrant it. However, disagreement exists about when that should be.

Today, most people would be aware that the murder label will be applied to circumstances in which an offender has caused the death of a person and has done so with a particular culpable mental state or mens rea. This involves an actual intent to kill or inflict grievous bodily harm,[8] or in some Australian jurisdictions,[9] the foresight that death or grievous bodily harm will probably result.[10]

However, it is perhaps less well known that in all but one Australian jurisdiction,[11] the law also applies the murder label to circumstances in which an offender brings about the death of a person while the offender is engaged in, or acting in furtherance of, the commission of another serious offence. This is so irrespective of whether or not the offender possessed an intent to kill or inflict grievous bodily harm or had foresight of either of those consequences. The only subjective mental state that is relevant is that required — if any — to establish the offender’s commission of the underlying offence.

Murder in these circumstances is commonly referred to as ‘felony murder.’ It is not a separate offence from ‘ordinary’ murder, but rather a means by which the offence of murder may be established without the prosecution needing to prove the mens rea element normally required for a murder conviction. It originated as a doctrine of the common law and has since been given statutory expression that varies in formulation from jurisdiction to jurisdiction.[12]

Felony murder has been the subject of vigorous criticism, being variously described as ‘harsh’,[13] ‘astonishing’,[14] ‘monstrous’,[15] ‘revolting’,[16] ‘morally odious’,[17] ‘an unsightly wart on the skin of the criminal law’,[18] ‘a legal fiction’,[19] and an ‘anomaly’.[20] The criticism has emanated from those, predominantly legal scholars,[21] who are of the view that the degree of culpability sufficient to justify a criminal conviction ought to be determined through the assessment of an offender’s subjective mental state corresponding to the prohibited act or consequences that he or she has brought about. In this paper, this will be referred to as ‘orthodox subjectivism’ or the ‘orthodox subjectivist approach’ to criminal fault.

In the face of such criticism, it may be reasonable to ask: would Australian legislatures be wise to abolish felony murder, as England and Canada have done? Or is there a legitimate case for retaining the rule as part of our criminal law?

The aim of this paper is to demonstrate that there is indeed a legitimate case for retaining felony murder on our statute books. Firstly, the paper seeks to challenge the various bases upon which the criticism of felony murder commonly proceeds (broadly grouped into the ‘descriptive’ and ‘normative’ arguments). Secondly, it seeks to explore the legitimacy of the felony murder rule by focusing on the rule’s ability to target situations of critical danger and violence brought about by an offender and to carve out homicides which are sufficiently heinous to warrant the murder label.

II WHY FELONY MURDER IS UNDER ATTACK

A The Basic Features of Orthodox Subjectivism

The orthodox subjectivist approach to criminal fault considers that the most culpable form of wrongdoing is the knowing, deliberate infliction of harm.[22] Accordingly, its central principle is that criminal liability arises not merely when an offender brings about a prohibited external event (usually an act or omission or its consequences) but when he or she does so with a certain subjective mental state or mens rea.[23] This is said to be encapsulated in the latin maxim actus non facit reum nisi mens sit rea, which, loosely translated, means that an act does not make a person guilty of a crime, unless his or her mind is also guilty.[24]

In addition to the central requirement that the prohibited external event be accompanied by a subjective mental state is the further requirement that this mental state correspond to the particular prohibited event. This is known as the ‘principle of correspondence’.[25] According to this principle, if a person possesses the intention to produce unlawful event A, but instead inadvertently brings about unlawful event B, the person cannot be convicted of the offence involved in unlawful event B any more than if event B had occurred by pure accident.

Given that felony murder permits a conviction of murder to be based on the physical act of killing and only the subjective mental state (if any) required for the underlying offence, it offends the principle of correspondence because, according to the orthodox subjectivist approach, ‘the mens rea should be required to correspond with the actus reus: if the actus reus consists of causing death, mens rea must be required as to that consequence’.[26]

B The Prevalence of Orthodox Subjectivism and the Criticism of Felony Murder

The reason for the weight of criticism levelled against felony murder is that orthodox subjectivism is pervasive in conventional accounts of criminal law in modern common law nations, particularly in relation to the offence of murder.

The orthodox subjectivist approach to criminal fault is explicitly acknowledged as the mainstream legal philosophy in England,[27] where the felony murder rule was abolished by statute in 1957,[28] apparently with very little opposition.[29] Although the House of Lord’s decision in DPP v Smith[30] four years later undermined the effect of that statute by allowing the mens rea for murder to be determined objectively,[31] this decision was widely criticised[32] and was soon abrogated by statute in 1967.[33]

More recently, the United Kingdom Law Commission’s Consultation Paper on the review of the law of homicide in England and Wales expressly reinforces support for both subjectivism and the principle of correspondence — the two key tenets of orthodox subjectivism — as the appropriate means for attributing criminal responsibility for murder.[34]

In Canada, the Law Reform Commission has similarly affirmed its support of the orthodox subjectivist approach to criminal culpability. In its review of homicide, it decided to continue distinguishing the grades of homicide according to the subjective mens rea criterion so that, it was said, the criminal law would remain ‘at one’ with ‘common sense morality’.[35] It recommended abolishing felony murder from the Canadian Criminal Code on the basis that ‘no form of unintentional killing should be placed by criminal law on the same footing as intentional killing’.[36]

Although the Canadian legislature did not act on the Law Reform Commission’s recommendation, the Supreme Court soon struck down the felony murder provisions as unconstitutional, following the passage of the Canadian Charter[37] which permits the Court to evaluate legislation according to Charter principles.[38] These principles include the right not to be deprived of life, liberty and security except in accordance with the ‘principles of fundamental justice’.[39] The Court found that these principles required that an offence contain a mens rea element,[40] and for murder this required subjective foresight on the part of the accused,[41] thereby affirming the orthodox subjectivist view that it is an offender’s subjective state of mind that determines his or her culpability.

In America, virtually all states retain felony murder in some form[42] but criticism of the rule is abundant. Although some have tried to argue that felony murder may be unconstitutional for reasons similar to those successfully argued in Canada,[43] the constitutional validity of the rule has been upheld.[44] Indeed, critics of felony murder have lamented that the rule is deeply entrenched in the American legal system and has proved remarkably resistant to the calls for its abolition.[45]

Michigan is one of the few American states in which the common law felony murder rule has been abrogated. This occurred judicially in People v Aaron[46] where the Michigan Supreme Court endorsed the notion that the most fundamental principle of the criminal law is that criminal liability for causing a prohibited consequence cannot attach unless the offender possesses a culpable mental state in respect of that particular consequence.[47] This decision reflects clear support for subjectivism and the principle of correspondence.

Australia is equally recognised as subscribing to orthodox subjectivist principles of criminal fault,[48] despite the continued existence of felony murder in all but one jurisdiction. Lord Irvine of Lairg once remarked that the ‘Australian criminal law has more rigorously followed the subjective path when approaching questions of mens rea’[49] than has England (although he noted that England ‘found [its] way back to that subjective path’).[50] An illustration of this may be seen in the High Court’s refusal to follow the short-lived approach taken by the House of Lords in DPP v Smith[51] in which it was held that the mens rea for murder might be objectively determined. Indeed, the High Court expressly joined in the criticism of DPP v Smith, Dixon CJ describing it as ‘misconceived and wrong’ and asserting that the decision ‘should not be used as authority in Australia at all’.[52]

Alignment with the principles of orthodox subjectivism in Australia is also reflected in the ‘General Principles of Criminal Responsibility’ contained in Chapter 2 of the Model Criminal Code, now enacted in the Criminal Code 1995 (Cth) and the Criminal Code Act 2002 (ACT).[53] These provisions stipulate that the mental states of intention, knowledge, recklessness and negligence are the fault elements accompanying the physical aspect of an offence,[54] and all but negligence are to be subjectively determined.[55]

Not surprisingly, criticism of felony murder has also emanated from Australia over the years, most notably through law reform bodies. For example, in 1991 the Law Reform Commission of Victoria recommended abolition of the felony murder rule based on the fundamental principle that a person should only be guilty of murder if he or she intends to cause death.[56] This principle was said to conform to beliefs about criminal responsibility that are ‘widely held in liberal democratic societies’.[57]

In 1977, the Criminal Law and Penal Methods Reform Committee of South Australia had also argued for the abolition of felony murder on the basis that

[o]n no rational principle do [the underlying felonies] become murder, as that term is otherwise understood, if in the course of their commission someone’s death is caused by a defendant who neither intended nor foresaw such an occurrence’.[58]

In a similar vein, when New South Wales altered its sentencing laws for murder in 1989,[59] the Government was criticised for failing to do away with ‘that troublesome creature,’[60] the felony murder rule.

Yet, despite its volume, the criticism has to date been singularly unsuccessful at persuading Australian legislatures to abolish felony murder. The remainder of this paper seeks to explain why the criticism is unwarranted and why legislatures are justified in retaining felony murder as part of our criminal law.

III THE CASE AGAINST FELONY MURDER: THE DESCRIPTIVE ARGUMENT

A Subjective Fault as a ‘General Principle’ of Criminal Liability

Implicit in much of the criticism of felony murder is the idea that the criminal law has always centred culpability on the subjective state of mind of the offender and that this is the accepted ‘general’ or ‘fundamental’ principle for determining criminal fault.[61] The suggestion is that determining criminal fault according to subjective mens rea is somehow the ‘natural’ state of affairs:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.[62]

In positing subjective mens rea as the cornerstone principle of fault in the criminal law the orthodox subjectivist argument against felony murder is made to appear self-evident. Merely pointing out that the rule offends the principles of orthodox subjectivism becomes reason enough to abolish it.

Yet, this proclaimed general principle is not in fact as ‘general’ as it is often suggested to be. As Glanville Williams conceded, the requisite mental element has been eliminated from many offences and ‘watered down by others’.[63]

A brief review of the development of the law of murder reminds us that the orthodox subjectivist conception of murder is in fact a recent phenomenon, rather than one supported by the weight of history. Further, an examination of strict liability offences reveals that, even today, orthodox subjectivism’s claim to represent a ‘general principle’ of the criminal law is subject to significant exceptions. These exceptions lead us to question whether it can properly be described as a general principle at all.

B The Recency of the ‘General Principle’ in the Law of Murder

The notion that the orthodox subjectivist conception of criminal culpability represents a general principle of the criminal law often implies that such a principle has long been accepted as the legitimate basis for determining criminal culpability. The corollary of this is the idea that felony murder has therefore always been an anomaly.

An examination of the changing conceptions of murder throughout history reveals that the focus on the subjective mental state of the accused is essentially a creature of modernity.[64] While the murder label has generally always denoted the worst group of homicides, what constitutes the ‘worst’ homicides has in fact changed over time. Certainly, it is clear that murder as currently conceived by orthodox subjectivists has no superior historical claim to the label.

In Anglo-Saxon times, the expression ‘morth-slaying’ referred to a homicide performed ‘in secret’ where the identity of the killer was unknown.[65] The origin of the term has been traced to the Germanic tribes who settled in England and who ‘showed strong contempt for any secrecy in killing’.[66] For this reason ‘morth’, being a killing in secret, became known as the worst form of homicide.[67]

Following the Norman Conquest, the term ‘morth’ was latinised into ‘murdrum’[68] and was adapted to refer specifically to the secret killing of a Frenchman.[69] William the Conqueror is said to have adopted the law in this way so as to protect the Normans in England who were ‘many times secretly killed by the natives’.[70]

Eventually, homicides belonging to the worst category came to be identified through the presence of ‘malice aforethought’. In the 17th Century, Coke described malice aforethought as the distinguishing feature which set murder apart from manslaughter.[71] Although in recent times, malice aforethought is usually understood to refer to the guilty state of mind or mens rea for murder, in Coke’s day the expression meant general ill-will in the motives of the person rather than any specific guilty state of mind.[72]

Accordingly, when Coke stated the proposition (considered by many to be the origin of the felony murder rule)[73] that a death caused by a person in the commission of any unlawful act constituted murder,[74] he did not indicate that murder in such circumstances was any exception to his general definition of murder as requiring malice aforethought. Rather, it could be seen as one instance of a killing with malice aforethought, the general ill-will in the motives of the person being evident in the person’s willingness to engage in the unlawful act.

By the 18th Century, Foster considered that malice aforethought was present in the fact that the death ‘hath been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, malignant spirit’[75] and could be implied from ‘circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief.’[76] This meaning was subsequently adopted by Blackstone who also described malice aforethought as being any ‘evil design in general; the dictate of a wicked, depraved, and malignant heart.’[77]

Indeed, until relatively recently, the courts were not well equipped to undertake an inquiry into the accused’s specific state of mind. The rules of evidence prohibited the introduction of what would have to be the core evidence for such an inquiry — the testimony of the accused.[78] Malice aforethought was generally presumed from the fact that an unlawful killing had occurred,[79] which meant that there was no need to inquire into the mental state of the accused to demonstrate his or her ‘evil design in general’. Blackstone stipulated the general rule that all homicide would be taken as murder, unless the accused could demonstrate that one of the justifications or excuses could be established, or that the killing fell within one of the categories of manslaughter.[80] In other words, a presumption of guilt relieved the prosecution from having to demonstrate positively the existence of malice aforethought in the accused, for it was presumed as part and parcel of the act of killing.[81] This rule was repealed in 1853, but until 1898 the accused’s testimony could not be given under oath and was presumably accorded less weight.[82]

It was only around the 19th Century, as the focus for determining criminal responsibility came to be on the requirement that there be both an external event accompanied by a subjective mens rea corresponding to the external event, that malice aforethought came to be equated with the subjective mens rea for murder.[83] Of course, given that malice aforethought had not originally been concerned with specific subjective mental states, difficulties arose in accommodating it within this conceptual framework. As noted recently by the High Court:

The complexity of the common law as to malice for the purposes of the crime of murder, and the drawing of elaborate distinctions between actual, implied or constructive malice was a source of much concern in the second half of the nineteenth century.[84]

In particular, it was problematic to accommodate felony murder into a framework in which malice aforethought required specific subjective mental states corresponding to death or grievous bodily harm. Felony murder therefore came to be viewed as an ‘exception’ or a ‘fiction’ in which the law constructed a mental state which did not otherwise exist.[85]

The point is that, whatever charges of ‘legal fiction’ may be made against felony murder today, there was nothing fictional or anomalous about the rule in earlier times when malice aforethought was not focussed exclusively on the accused’s specific subjective state of mind. Importantly, while murder has always denoted the worst form of homicide, that has not always equated with what orthodox subjectivism considers murder to be.

C Other Exceptions to the ‘General Principle’ in the Law of Murder

The idea that felony murder is an anomaly in the context of the law of murder for its failure to accord with orthodox subjectivist principles is weakened by the fact that other aspects of the law of murder also depart from those principles, although, like felony murder, they were not anomalous in the context of earlier conceptions of malice aforethought.

All jurisdictions within Australia[86] as well as England[87] include the intent to inflict grievous bodily harm as sufficient mens rea for murder. While this accords with orthodox subjectivism’s focus on subjective states of mind, fundamentally it contravenes the principle of correspondence because the fault element, intent to inflict grievous bodily harm, does not correspond to the physical element, causing death.[88]

It is true that, like felony murder, the ‘grievous harm rule’ has been criticised and there have been calls for its abolition.[89] Nonetheless, the grievous harm rule has been an accepted means of attributing criminal culpability for murder for a significant period of time. The perception that it, like felony murder, is an anomaly for its failure to conform to orthodox subjectivist principles is misplaced:

It is not inconsistent with ordinary notions of criminal responsibility that an offender, seeking to maim or disfigure somebody so as to cause permanent injury to health and who in the course of doing so causes death should be convicted of murder. The common law has never thought it anomalous that an offender having such an intention and taking such a risk should, if the consequences of the act exceed the intended purpose, be convicted of murder.[90]

In addition to the grievous harm rule, the doctrine of transferred malice, recognised as applicable to the offence of murder, also contravenes the principle of correspondence.[91] The doctrine of transferred malice stipulates that an offender will be held liable for harm caused to another, even though he or she possessed no malicious intent towards that injured person, because the harm inflicted was the result of the offender’s attempt to carry into effect a malicious intent directed at some other person.

Although the doctrine of transferred malice subverts the principle of correspondence, it is also well established in the criminal law[92] and examples of its application are evident as far back as Saunders and Archer and Gore.[93]

In short, quite aside from the felony murder rule, there are a number of ways in which the law of murder has always departed, and continues to depart, from orthodox subjectivism’s ‘general principle’ of criminal liability.[94]

D Other Exceptions to the ‘General Principle’ — Strict Liability Offences

At the very time that the notion of subjective mens rea was crystallising in the 19th Century, the state was encroaching on that same development through the enactment of a large body of statutory offences, many of which did not require a subjectively determined mens rea.[95]

Indeed, the most glaring example of the inadequacy of orthodox subjectivism as a general principle of criminal responsibility is the significance of strict liability offences in modern times.[96] Offences of strict liability do not require the prosecution to prove subjective mens rea on the part of the accused, although the accused may plead a defence if the wrongful conduct was based on an honest and reasonable mistake of fact.[97]

Presently in Australia, there is little hesitation on the part of legislatures in creating strict liability offences.[98] While the courts interpret statutory offences with the presumption that some form of mens rea is required,[99] it has been firmly stated that this presumption is rebuttable,[100] and it does not apply in the code jurisdictions.[101]

A similar development has occurred in other jurisdictions. For example, in England, Ashworth undertook a study of statutory offences and found that the majority of new offences were characterised by three features — strict liability, omissions liability and reverse onus provisions for exculpation. He notes that those features ‘lie a considerable distance from the conception of criminal laws held by many university teachers and criminal practitioners’ and ‘are inconsistent with prominent elements of the rhetoric of English criminal law,’ including the presumption that mens rea is a prerequisite for criminal liability.[102]

Many of those who subscribe to orthodox subjectivism do not consider the phenomenon of strict liability offences to be a factor weakening the orthodox subjectivist claim to represent a general principle of the criminal law. This reconciliation is reached by asserting that the general principle is reserved for ‘serious’ or ‘traditional’ common law crimes, rather than every offence of the criminal law.[103] In this way, strict liability offences can be tolerated as ‘exceptions’ to the general principle of criminal fault because they are considered to be petty crimes[104] — confined to the domain of summary or regulatory offences where a conviction ‘does not impute very much, if any, social stigma’.[105]

Yet, summary and regulatory offences make up the overwhelming majority of offences processed in the Australian criminal justice system.[106] A so-called ‘general’ principle that is largely inapplicable to these offences may be of questionable utility, given their numerical significance. Moreover, these offences are not always simply regulatory, they are in some instances serious crimes.[107] Drug offences provide an obvious example.

The High Court’s decision in He Kaw Teh v The Queen[108] is generally understood as establishing that the prosecution must demonstrate actual knowledge on the part of the accused in order to prove the element of possession in drug offences. However, as the more recent decision of Tabe v The Queen[109] demonstrates, this principle has no application if the terms of a statute expressly or impliedly require otherwise.

In Tabe, the issue was whether, in order to establish possession of a dangerous drug under s 9 of the Drugs Misuse Act 1986 (Qld), it was sufficient to demonstrate that the accused had custody of a dangerous drug without showing that the accused had actual knowledge of its contents or nature.

The majority found that because the legislation expressly placed the onus on the accused to plead the defence of honest and reasonable mistake, as a matter of statutory construction it could not logically have been necessary for the prosecution to prove, as an element of the offence, that the accused knew that the substance in his or her custody was a dangerous drug. If the prosecution had been required to show such knowledge, then there would be virtually no possibility of the accused ever being able to plead the defence[110] and little point in its inclusion.[111]

Consequently, the accused’s conviction and sentence of two years’ imprisonment was left undisturbed although the accused had not been shown to have actually known that the substance was a dangerous drug. In their joint reasons, Callinan and Heydon JJ acknowledged that ‘[t]he consequences for accused persons are heavy ones’ but went on to add that ‘they follow from a legislative response to what is seen as a very serious crime, hard to prevent and difficult to prosecute’.[112]

And even in cases where establishing possession does require proof of actual knowledge on the part of the accused, if the prosecution is able to prove that requisite knowledge and the amount of drugs possessed meets a specified trafficable quantity, drug legislation in a number of jurisdictions provides a presumption that the accused is then guilty of the more serious offence of intent to supply or sell.[113] The terms of the legislation make it clear that the prosecution is not required to prove an actual intent to supply or sell and the accused bears the onus of negating that presumption.

The phenomenon of strict liability offences encroaching on the domain of serious crimes rather than just regulatory offences is not exclusive to Australia. For example, the United Kingdom Law Commission noted recently that wholly subjectivist principles of criminal liability have found little or no favour with recent governments, ‘which have consistently preferred more objective principles of liability when reforming even serious offences against the person, such as rape’.[114]

Ultimately, strict liability offences do not conform to orthodox subjectivist principles of criminal fault yet they make up a significant part of our substantive criminal law. Importantly they cannot always be explained away as being merely insignificant regulatory offences.

E What is left of the ‘General Principle’?

Recognising some of the qualifications to the so-called general principle of subjective mens rea leads to the question: at what stage do exceptions become so significant that the principle can no longer properly be described as ‘general’?

The claim that felony murder constitutes an irregularity in the criminal law, or even in the context of common law crimes, is less than compelling. It remains for critics of felony murder to resort to a normative argument and contend that even if the subjective mens rea cannot be asserted as being the general principle for ascertaining criminal culpability, it ought to be the case.

IV THE CASE AGAINST FELONY MURDER: THE NORMATIVE ARGUMENT

While the idea that the orthodox subjectivist approach applies universally as a general principle for determining criminal culpability is contestable, orthodox subjectivists may argue that the idea is nevertheless ‘normatively significant’.[115] That is, it is an ideal standard that should be used to guide those who administer, review and develop the criminal law.[116]

In relation to the felony murder debate, there appear to be two dimensions to orthodox subjectivism’s normative argument that the stigma of the murder label should be reserved for those who have been shown to possess the subjective mens rea for murder. The first dimension is a claim that orthodox subjectivist principles reflect and endorse the public opinion. The second dimension is an appeal to the liberal conception of human behaviour which asserts that humans are most culpable when they act on the basis of their positive intentions or the foresight of the consequences of their conduct.

A The Public’s View of ‘Murder’

On a number of occasions in the felony murder debate, the claim has been made that the law should confine convictions of murder to those homicides in which the subjective mens rea for murder is established because this is what the public considers the ‘worst’ homicides to be.

In a Working Paper on reform of the law of murder in Victoria, the Victorian Law Reform Commissioner asserted that the common understanding of murder was an intentional killing. He therefore recommended that the law be amended to align with this view because ‘legal terms, especially in the criminal law, should correspond to their popular meaning wherever possible.’[117] Williams notes that the Victorian Law Reform Commissioner’s assertion as to the popular meaning of the word murder is essentially speculative and concludes that the public’s view is ‘simply not known.’[118]

During debate on the Bill to abolish felony murder in England, there were frequent assertions by members of the House of Commons justifying the abolition of the rule on the basis that it did not conform to what the public regarded murder to be. Mr Silverman made the claim that ‘[n]o ordinary man or woman would regard it as right to convict anyone of murder, whatever the penalty, where there was no intention to kill.’[119] Mr Paget argued that to attribute the murder label where the killing was unintended ‘offends one’s sense of reason and of the ordinary meaning of the words,’ perhaps, he added, not to a lawyer but at least to the ‘ordinary man’.[120] Mr Houghton declared that the decision to abolish felony murder was ‘in accordance with public belief of what the law is and in accordance with what the public believe to be the right sort of thing.’[121] Nothing was cited by way of evidence to substantiate the assertions about the views of the ‘ordinary man or woman.’

There have, however, been a number of surveys conducted in an effort to demonstrate empirically that the public does not consider felony murder situations to be sufficiently culpable for the murder label. The surveys have generally required respondents to rate various homicide scenarios on a scale of seriousness.[122] In the result, these surveys do not provide conclusive evidence of the orthodox subjectivist claim to reflect and endorse the public opinion. The surveys all indicate that the respondents did regard a killing in the commission of another serious crime to be a significant aggravating factor on the degree of the offender’s culpability.[123]

However, some researchers purport to draw the further conclusion that while the felony murder scenarios were rated highly on the scale of culpability, they were rarely rated as ‘the worst possible homicide,’[124] suggesting that the public does not consider such scenarios to be sufficiently culpable for the murder label.

The flaw in this argument is that in these surveys, the respondents were not asked to attribute the labels murder or manslaughter, but rather were required simply to give a rating on a numerical scale of culpability. Clearly, a numerical scale can admit of degrees in a way that the labels of murder or manslaughter cannot. If we accept that there cannot be as many labels as there are shades of culpability, we acknowledge that one label must contain some level of variation in degrees of culpability.[125] Merely because the respondents did not give the felony murder scenario the highest score of culpability among the given set of homicide scenarios, does not mean that they would not have included it within the most serious group of homicides known as murder.[126]

Indeed, it is acknowledged by some that the public may well support the felony murder rule. For example, in the Second Reading Speech on the Bill giving statutory formulation to felony murder in South Australia, the Attorney-General of that State acknowledged the ‘unanimity of professional opinion’ set against the felony murder rule but went on to explain that the rule possessed a ‘certain popular appeal’ and usefulness.[127] Consequently, the Government declined to follow the recommendation of the ‘professionals’ that the rule be abolished.[128]

When faced with this dilemma, the tendency of critics of felony murder is to downgrade the legitimacy of the public view by suggesting that felony murder has only managed to survive out of public hysteria and the political cowardice of legislators who endeavour to appear ‘tough on crime’ in the eyes of the electorate.[129] Critics argue that the weight of public opinion will always be in favour of harsher laws and wider gates into murder convictions because ‘[w]hen life and death are at stake, emotions run high and controversy abounds.’[130]

For example, Horder claims that if culpability were simply a matter of the public view, the question of whether felony murder killings should be included in the category of murder could be disposed of simply by asking the jury to adjudge whether a killing was so abhorrent as to warrant the label of ‘murder.’ He rejects this approach on the basis that it would minimise mens rea and make everything contingent upon the jury’s moral evaluation.[131]

The result is that critics of felony murder adopt inconsistent positions with respect to the role of the ‘public view’ in advancing the argument that murder ought to be confined to killings in which the subjective mens rea for murder is established, thereby cancelling out the argument’s persuasive power. This leads us to the second aspect of orthodox subjectivism’s normative argument against felony murder. It is dissociated entirely from the contingencies of public opinion because it maintains that the mental state of an accused is what intrinsically makes conduct more or less blameworthy.

B Subjective Mens Rea as Determinative of Moral Blameworthiness

The normative basis for the principle of subjective fault is closely tied to the perception that human beings are autonomous entities, possessing free-will and ‘a great capacity to choose among alternative courses of behaviour.’[132]

The notions of free-will, autonomy and choice are generally associated with the Enlightenment and the emergence of liberal moral and political philosophy.[133] In particular, the concept of basing criminal responsibility on the requirement that there be both an external element (the actus reus) and an internal one which corresponds to it (the mens rea) is said to stem from ‘Cartesian dualism,’ based on the 17th Century philosopher Descartes who believed that there was a separation or ‘dualism’ of mind and body.[134]

Informed by these notions, orthodox subjectivism maintains that criminal liability should only be imposed where a person has chosen to perform a prohibited act or to continue on a course of action in the awareness that certain prohibited consequences may result. This is how assessing the subjective mental state of an offender is said to ensure the criminal law’s affinity with morality. As articulated by Windeyer J in Timbu Kolian v R:[135]

[A]ccording to deeply rooted beliefs blameworthiness does not depend simply on what a man did or on the results his actions caused. It depends upon his knowledge and his intentions when he acted – or upon his advertence to the possible consequences of what he was doing or was about to do, or his careless ignoring of them … The words used reflect a view of psychological processes which at the end of the last century had become accepted, dominant and orthodox for legal purposes.[136]

Certainly, possessing a positive intention to kill and taking steps to bring the intention to fruition is a very good — indeed sufficient — reason for convicting a person of murder. However, the subjectivist paradigm assumes that an individual is always positively aware of what they do in this way, and always consciously makes the decision to proceed or stop on a course of wrongful conduct. Yet, it is possible that a person never formulates such thoughts at all, or that such thoughts are indiscernibly mixed amongst a multitude of other thoughts. [137]

Mens rea is generally described in positive terms such as ‘formulating’ an intention or ‘having’ foresight. But what does it mean to say that the offender ‘had’ foresight that death, or grievous bodily harm, was a probable consequence? Was there a conversation in the offender’s mind, weighing up whether death was a probability or merely a possibility? The language of mens rea creates the impression that such a mental dialogue actually occurs.

Yet the testimony of some offenders suggests that they do not always experience mental states in this way. Of course, it could always be argued that the offenders in these cases are lying about the contents of their head at the time of the killing. Our inability to look into their mind at the time of the offence means it is impossible for us to determine whether this is so or not. The real point is: given the offender’s conduct, should it make any difference to the offender’s level of culpability whether or not he or she experienced the specific mental state at the relevant moment?

In R v Moloney[138] the accused was convicted of the murder of his stepfather who he had shot during a ‘contest’ to see who was able to load and draw a shotgun most quickly. In evidence, the accused claimed that he ‘never considered that the probable consequence of what [he] might do might result in injury to [his] father’ and, further, that he ‘never conceived that what [he] was doing might cause injury to anybody.’[139]

A similar experience was alluded to by the accused in Commonwealth v Carroll.[140] The accused and his wife were lying in bed one morning, having argued for several hours over the course of that night. At some point, the accused remembered a pistol placed at the head of the bed, intended to be security for his wife when he was away. He proceeded to seize the pistol and shoot his wife in the back of the head.

The accused’s account of what he recalled thinking at the time of the shooting reveals that there was no formulation of an intent to kill. The psychiatric evidence stated that the killing was an ‘impulsive automatic reflex type of homicide.’[141] Nonetheless, the accused was convicted of murder. It was not so much that the accused’s testimony was disbelieved but rather that, in the face of his conduct, the law was unable to accept that the killing could not have been wilfully done.[142]

What this testimony suggests is that, at times, offenders may not actually have any thoughts about what they are doing; their mind may not be turned towards the killing; their mental state may be ‘blind’.[143] It is questionable whether we can properly say in these circumstances that the accused ‘had’ the intent to kill. Perhaps the more likely scenario is that ‘many confused “conversations” took place’ and any later examination of mental state in a court of law is ‘likely to be a defence or prosecution lawyer’s invention’.[144]

The accepted practice within the courts is that the subjective mental state of the accused is usually inferred from the outward circumstances of his or her action. This is necessary because, as a practical matter, ‘[a]bsent a comprehensive and reliable confession, it is usually impossible for the prosecution actually to get into the mind of the accused and to demonstrate exactly what it finds was there at the time of the criminal act.’[145] As such, ascertaining an accused subjective mens rea is always, to some extent, a construction of the jury based on the accused’s behaviour, experience and characteristics.[146]

Accordingly, the point of questioning the reality of intention or foresight in cases such as Maloney or Carroll is not to suggest that the accused was not culpable enough to warrant a murder conviction, for the intuitive feeling is that it was nothing less than murder. Rather, it is to highlight that we should be wary of holding inflexibly to a principle that limits criminal liability to ‘made-up answers to such questions’.[147]

Consider then the comments of Karl Kramer, one of the offenders convicted of the murder of an employee at a pizza shop who was shot while Kramer and others carried out an armed robbery. In a typical felony murder situation, one of the offenders carried a loaded gun and during the course of the robbery, the gun discharged and the employee was killed.

After serving several years of his murder sentence, Kramer maintains that at the time of the offence, he had no intention to kill or cause harm to anyone and in fact did not even consider the possibility of someone being harmed. He explains that this was because ‘I was in a state of mind where I believed it [getting the money] was so important to me’. Or, in the words of one of the victim’s co-workers ‘all [he] could see was dollar signs, [he] couldn’t see anyone else in front of [him]’.[148]

It is difficult to see how Kramer’s murder conviction is any less warranted than the convictions in Maloney or Carroll just because, being prosecuted via the felony murder route, there was no pretence of proving that he possessed a positive intent to kill or inflict grievous bodily harm.

This is not to suggest that positive mental states such as intention or foresight of particular consequences never occur. Obviously there will be occasions when we know that such mental states do exist, for example where a person kills another by poisoning over a course of days or months, or where someone hires a hit-man to carry out a killing. In these situations, the offender has almost certainly made a conscious ‘announcement’ to themselves to kill a person and has resolved to bring it about.[149] The point is that we may not want to confine convictions of murder to these instances alone as it is doubtful that only these sorts of killings belong to the worst category of homicide. In some circumstances, offenders may be no less culpable despite the fact that they did not experience these particular states of mind. This notion is given practical recognition in the felony murder rule.

V THE CASE FOR FELONY MURDER: TARGETING CRITICAL DANGER OR VIOLENCE

A The Key Features of Danger or Violence

The felony murder rule may be viewed as an explicit recognition that in circumstances where the accused has created a situation of critical danger or violence,[150] his or her culpability for killing another is not adequately explained by an inquiry into his or her subjective mental state. Rather, the felony murder rule seeks to attribute responsibility on a holistic view of the offender’s conduct by encompassing the situation of danger or violence as a whole:

[T]he assessment of moral guilt depends on a view of the whole circumstances, and not on the distinction between the presence or absence of a particular mental event such as foresight and acceptance of a risk.[151]

1 The Historical Recognition of Danger or Violence

It is not uncommon for critics of felony murder to resort to the so-called origin of the felony murder rule in Coke’s extremely broad proposition that any unlawful act resulting in death amounts to murder[152] to support their argument that the rule is without a legitimate basis. Yet, even assuming that Coke intended the proposition to operate this broadly,[153] this argument tends to overlook the fact that the features of violence or danger soon came to characterise the felony murder rule and are fundamental to its rationale.

Certainly, the criticism of Coke’s proposition has been extensive. Stephen claimed that the rule was not supported by the authorities that Coke cited,[154] while Lanham suggests that the statement was essentially a mistake and that Coke had really meant to say manslaughter not murder.[155] Others have said that the statement was the result of a blunder by Coke in the translation of a passage from Bracton.[156] The criticism continues to be made today, most recently by the United Kingdom Law Commission which accuses Coke of having a ‘patchy’ knowledge of the criminal law and of giving an account of the law of murder which ‘contained some serious errors’, including the proposition that killing in the course of any unlawful act amounted to murder.[157]

The suggestion that appears to be made in emphasising the flaws in Coke’s proposition is that felony murder would not have existed at all, had it not been for the respect which Coke commanded over subsequent generations of jurists and legal writers, all of whom have tried their best to minimise the impact of the rule although none were able to discard it entirely.

However, whether or not we accept that Coke was wrong to state that any unlawful act resulting in death was murder is of no real consequence. It is clear that writers subsequent to Coke did not endorse a rule in such a broad form. However, they did continue to develop a principle that deaths resulting from a person’s conduct in the commission of another crime would in certain circumstances constitute murder.

At least by the time of Foster, the key circumstance necessary for a death occasioned in the commission of an unlawful act to qualify as murder was that the unlawful act belong to the serious grade of offences known as felonies.[158] As Binder points out, the traditional common law felonies generally all involved direct threat to a person, with the exception perhaps of burglary and theft or larceny.[159] However, burglary involved breaking and entering to commit another felony and was considered to justify resistance with deadly force. Theft, having a slightly different meaning than in the present day, was considered to be ‘inherently provocative.’[160] Therefore, limiting Coke’s rule to cases in which the underlying offence was a felony was more than a mere linguistic modification; it was a modification of substance.

Further, notwithstanding the various formulations and adjustments of the rule by writers subsequent to Coke, in practice at least it appears that the courts tended to require that the felony involve some element of violence or danger in and of itself.[161] In fact, contrary to what some have asserted,[162] Binder contends that a close examination of the records of cases in England reveals that there is no evidence that the rule in the broad form postulated by Coke, or even Foster, ever formed part of the common law in England. While the broad rule may have been proposed extrajudicially in various treatises and even discussed favourably in dicta in some cases, it was not actually applied in any case. The felony murder rule that the common law eventually adopted and applied was characterised by the additional elements of violence or manifest danger.[163]

Certainly, by the time of DPP v Beard[164] the House of Lords expressly incorporated the requirement of an act of violence into the rule, stating that ‘[a]n act of violence [causing death] done in the course or in furtherance of the crime of rape, a felony involving violence, is murder’.[165] Although in Australia two years later the High Court in Ross v The King[166] did not expressly state that the felony had to be accompanied by additional features such as violence or danger, at least three judges of the High Court expressed dicta to that effect in Ryan v The Queen.[167]

By the time of the South Australian Supreme Court decision of R v Van Beelen,[168] the common law felony murder rule was clearly stated to require ‘the commission of a felony involving violence or danger’.[169] The Court added that, to the extent that the formulation contained in the Ross v The King could be interpreted as not requiring elements of violence or danger, it did not accurately state the law.[170]

The felony murder rule is now in statutory form in all Australian jurisdictions, with the exception of the Australian Capital Territory where it no longer exists. If we examine the various statutory formulations of the rule, it is evident that they share a common element of critical danger or violence procured by the offender.

In New South Wales, the rule requires that the death must be caused during the commission of an offence punishable by imprisonment for life or 25 years[171] and the offences within this bracket are generally crimes of violence or danger.[172] The Victorian and South Australian provisions expressly include the requirement that the offence or the act causing the death involve violence.[173]

Similarly, in the code jurisdictions, the felony murder provisions all provide that the act causing the death must be one ‘of such a nature as to be likely to endanger human life,’ or in the case of Tasmania, one which the offender knew, or ought to have known, was likely to cause death in the circumstances.[174]

2 The Importance of Looking Holistically at an Offender’s Conduct

The importance of looking holistically at the situation of critical danger or violence procured by an offender lies in the fact that, once such a situation is created, it is often not possible to control the course of events. As was put plainly by one felony murder offender, ‘[y]ou can’t really plan what is going to happen.’[175] There is always the potential that victims will resist or law enforcement officers will be engaged, which in turn may bring into play the use of deadly force. As the trial judge explained to the jury in R v Butcher:

[T]he reaction of men to threats upon them are known to vary widely. The man who threatens his victim … must realize that the consequential reaction cannot be predicted with certainty. Some victims may retreat; some may advance.[176]

A similar point was made by the Supreme Court of Pennsylvania:

There can be no doubt about the ‘justice’ of holding the felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being.[177]

While critics frequently claim that felony murder is offensive because of its capacity to label a person as a murderer even when the killing was ‘accidental’,[178] in understanding culpability in terms of the situation of danger or violence as a whole, we see that the death is no ‘accident’, for the potential for death is one reason that the dangerous or violent conduct is criminalised in the first place.[179]

In accepting his responsibility for murder, Karl Kramer admits that although he had no intention to kill or inflict harm, the killing could not simply be regarded as an ‘accident’:

There’s no such thing as luck. If I believed in luck, good luck or bad luck, then it is very easy to explain away what happened to [the victim] — it was bad luck … It wasn’t luck that it was him and nobody else, it was my decision, it was what I did.[180]

Ultimately, the accused ought to be responsible for the fatal potential of the situation because the critical danger or violence came about as part and parcel of his or her conscious resolve to break the law in a serious way. This has been expressly recognised in various sentencing decisions in which felony murder offenders have argued for reduced sentences on the grounds that the culpable mental state ordinarily required for murder was absent. The courts have taken the view, properly it is submitted, that felony murder killings may be just as culpable as intentional ones.[181] Three cases in New South Wales illustrate this point.

In R v Petrinovic[182] the accused attempted an armed robbery carrying a loaded gun. One of the store employees struggled with the accused and the gun discharged, killing the employee. The accused was convicted of murder via the felony murder rule. In finding that there was little reason to view his conduct as less culpable than conduct in which a positive intention to kill is established, the Court explained:

[S]uch crimes … have the all too great potential to result in someone’s death. Their fatal potential is reflected in the retention of the felony-murder provision in s 18 of the Crimes Act. The whole purpose of the conduct involved in the offence of armed robbery with a dangerous weapon is to pose a real threat of death to compel victims to hand over property. Where that death has been so caused there is little room to find the offence is any less culpable and good reason to consider it as at least as culpable as murder committed intentionally.[183]

The approach in Petrinovic was endorsed by the New South Wales Court of Criminal Appeal in R v Mills,[184] in which the facts were virtually identical to those in Petrinovic. The accused appealed his sentence on the basis that a conviction under the felony murder doctrine in which the mens rea for murder was absent was less culpable than one in which the mens rea was established. The Court rejected the argument, underlining how seriously the law regards robbery with a loaded firearm and emphasising that the accused was unable to cite any authority in support of his argument. The Court concluded that the mere fact of being a felony murder was not sufficient grounds for reducing the minimum term or the total sentence.[185]

Finally, in R v Robinson[186] the accused was convicted of murder under the felony murder rule following an armed robbery of a computer store in which the manager was shot and subsequently died. The accused appealed against his sentence on the grounds that it was excessive having regard to the fact that there was a specific finding by the trial judge that the accused had not intended to kill the victim. To this argument, the Court responded:

Assuming that to be his Honour’s finding … it does not seem to me to matter very much. This Court decided in April 1995 in R v Mills … that one must look at the objective criminality of an individual rather than speculate about the intention in his or her mind. In particular, that one must not draw a distinction between felony murder and murder with pre-ordained intention.

In the present case, I find it difficult to see why [the accused] should be treated any more favourably than if he had intention from the beginning to murder [the victim]. If he had thought about the matter at all, he would have realised that the only point of taking an armed revolver into the store was to use it if it were necessary to do so. If he did not think about it before then, he was reckless to a degree that is hard to imagine.[187]

In the end, the unease that felony murder engenders in critics seems to be more about the desire to align with orthodox subjectivist principles from a doctrinal point of view than it is to do with any real sense of injustice occasioned by the rule in practice. If we free our conception of criminal culpability from the need to find subjective mens rea corresponding to the prohibited external event, it is possible to see that killings occurring in felony murder situations are sufficiently culpable to warrant the stigma of the murder label. Indeed, the felony murder rule can be seen to accord with the sense in which the law expects people to take responsibility for the consequences of their risky behaviour, a theme which has been increasingly recognised in other areas of law in Australia in recent times, most notably in the law of negligence.[188]

VI DOES IT MAKE A DIFFERENCE?

As a final argument in support of the abolition of felony murder, some critics have suggested that, aside from the offensiveness of felony murder from a doctrinal point of view, in practice it is rarely used and its abolition would result in no noticeable difference to murder prosecutions. There has been little statistical data to support this assertion. However, an example that has been given on a number of occasions is that the abolition of felony murder in England led to ‘no reported detriment’[189] and ‘its passing apparently has not been mourned.’[190]

To the extent that there has been little academic discussion of the rule’s abolition and no attempt to re-introduce it, this assertion may be correct. It is worth pointing out, however, that the law of homicide in England has not been considered to be satisfactory since that time and there have been repeated calls for broad-scale reform.[191] Wilson has observed that the law of murder in England is often criticised as being both under and over inclusive[192] and argues that there are indeed grounds for ‘mounting a revival of a form of felony-murder’ to help ‘plug the gap left in domestic law by the wholesale abandonment of risk-taking as murder’s fault element.’[193] To use the example of the abolition of felony murder in England as evidence of the rule’s redundancy is not as convincing as it might first appear to be.

One set of statistical data that has been put forward in support of the argument that abolishing felony murder would have no practical drawback is that furnished by the Victorian Law Reform Commission.[194] The Commission reported that in Victoria in the period 1975–82 there were 96 murder convictions, 10 of which arose in the context of a violent crime and the felony murder rule was relied on in only five of them. The Commission contends that it is possible that the jury would have found intent to kill or inflict grievous bodily harm or recklessness in those five cases. Further, in the period 1981–87, the Commission asserts that there were only 10 cases in which felony murder was ‘genuinely an issue’. Of those 10 cases, there were five guilty convictions and in those five convictions the Commission again contends that it was possible that the jury may have reached their conclusion through a finding of intention or recklessness rather than through the felony murder rule.

There are a number of problems with this evaluation of the statistics.

First, because of the way that murder is left to the jury and the fact that one count of murder may be put with alternative bases,[195] it is not possible to determine when a jury has reached its guilty verdict via the felony murder route.[196] The Commission contends that in the cases in which guilty convictions were obtained, it is possible that the jury could have reached this conclusion via a finding of intention or recklessness.

This may be so, but it is equally possible that the jury reached the conclusion via the felony murder route and would not have been able to do so in the absence of that avenue. In short, it is simply not possible to say that the rule was or was not critical in those cases.

The Commission does acknowledge this point, but goes on to state that each case was analysed closely and ‘[o]nly one of them appears to have been a genuine felony murder case.’ It is unclear exactly what is meant by this statement, but if the suggestion is that in only one of the cases was it clear that intention or recklessness could not have been satisfied, this misses the point of felony murder entirely. Felony murder is not about showing that the accused did not have the subjective mens rea otherwise required for murder; it is about attributing culpability for murder without needing to demonstrate that subjective mens rea. The accused’s conduct in creating the situation of critical danger or violence which resulted in the death is sufficiently culpable to warrant the murder label whether or not the accused had the relevant subjective mental states ‘normally’ required for murder.

Secondly, the statutory formulation of felony murder in Victoria enacted in 1981 is narrower than felony murder provisions in other Australian jurisdictions because of its requirement that violence be a necessary element of the underlying offence.[197] There are comparatively few crimes which meet this requirement and therefore less scope for the rule to be invoked in Victoria. As such, the Victorian statistics may not reflect the experience in other Australian jurisdictions, at least in respect of the period 1981 onwards.

Thirdly, it should be remembered that homicide is a rare crime and, in that context, five or 10 cases do not necessarily represent an insignificant proportion.[198] Even if the rule were only successful in attributing criminal responsibility for murder in one case where it is warranted, the rule is worth having. The fact that a criminal offence is rarely prosecuted is hardly grounds for its abolition. Further, a significant proportion of homicides that occur in Australia occur during the commission of another offence[199] which suggests that there may be considerable work for the rule to perform.

In fact, contrary to the claim that the abolition of felony murder would have no practical effect, there are signs that in the Australian Capital Territory, the absence of a felony murder provision may indeed make a difference to murder prosecutions. In a recent ‘classic’ felony murder scenario involving an armed robbery of a post office, the accused was convicted of manslaughter and sentenced to 12 years’ imprisonment — substantially less than what he would have received for a murder conviction.

One commentator observed that ‘[h]ad the … killing occurred anywhere else in Australia, there is little doubt that a conviction for murder and a life sentence would have been real possibilities.’ [200] While some in the community would see the outcome of this case as evidence of the leniency of the courts, the sentence imposed was actually towards the higher end available and certainly one of the longest ever imposed for manslaughter in that jurisdiction. Nor could the fault be said to lie with the prosecution’s acceptance of the accused’s guilty plea for manslaughter. The prosecution would have faced serious difficulties in proving the intent to kill or reckless indifference required for a murder conviction and was therefore wise to accept that plea.

Rather, the fault could be seen to lie with the lack of a felony murder provision in the substantive law of homicide in the Australian Capital Territory. Accordingly, ‘the answer to any disquiet over this result may be to reconsider the Territory’s homicide laws’[201] and, in particular, the incorporation of a felony murder provision.

Given the pervasiveness of the orthodox subjectivist approach to criminal fault, there may be little chance of felony murder being re-introduced in those jurisdictions such as the Australian Capital Territory where it no longer exists. However, to the extent that jurisdictions in Australia are encouraged to undertake reform of the law of homicide, as England is in the process of doing or as part of a broader codification process prompted by the Model Criminal Code, this paper advocates that there is a strong case for retention of the felony murder rule.

VI CONCLUSION

Given that orthodox subjectivism is dominant in modern academic approaches to criminal liability, it is hardly surprising that the felony murder rule has attracted such an extensive body of criticism. This is especially so because the offence of ‘murder’ is widely understood to represent the most culpable form of homicide, and felony murder bypasses the principle that the orthodox subjectivist approach consider to be the key to criminal culpability.

While the orthodox subjectivist approach does govern the determination of criminal responsibility in a number of instances, including murder, it is inaccurate to describe it as a ‘general’ principle of the criminal law. As such, felony murder’s failure to accord with the principles of orthodox subjectivism need not lead to the conclusion that the rule is anomalous with the accepted ‘general’ methods of determining culpability.

The claim that orthodox subjectivism is the ideal paradigm for determining criminal culpability is questionable. Some critics of felony murder suggest that the public considers the most culpable form of conduct to be that committed with the intention or foresight of death and that the law should strive to accord with, and reflect, the public sentiment. Conversely, some critics concede that the public may in fact support the felony murder rule. Ultimately, the ‘public view’ fails as a justification for orthodox subjectivism’s argument against felony murder.

Orthodox subjectivism’s claim that criminal culpability should be based on subjective mental states corresponding to a particular prohibited event stems from liberal conceptions of human behaviour and the assumption that offenders act on the basis of positive mental states such as intention or foresight. It is questionable, however, whether a culpable offender always experiences such mental states when performing an unlawful act. As such, it is problematic to hold inflexibly to the view that individuals are necessarily less culpable for acts or consequences which they did not positively intend or foresee.

The focus of felony murder is on situations where the offender has brought about a situation of critical danger or violence. In these situations, the attempt to ascertain whether the offender intended or foresaw the fatal consequences of his or her conduct is not merely a difficult task evidentially, it often seems to be a futile one in terms of grading the offender’s culpability. The offender has procured the fatal potential of the situation and, as such, it would be artificial to lessen his or her culpability merely because these fatal consequences were not actually intended or reflected upon.

This is not to suggest that orthodox subjectivism is not a valid method of attributing criminal responsibility, much less that it should be replaced by some broad-ranging objectivist theory of criminal fault. Rather, this paper advocates that criminal responsibility may in some instances be satisfactorily determined without the strict application of orthodox subjectivist principles. Felony murder is one example of an effective means of determining criminal culpability of sufficient heinousness to warrant the murder label without applying orthodox subjectivist principles. Importantly, felony murder should not be perceived, either now or in history, as an anomaly in that respect and there are sound bases for its retention in the law of murder in Australia.


[†] BA LLB (Hons) (ANU). Solicitor and barrister of the Supreme Courts of the Australian Capital Territory and New South Wales and Occasional Tutor at the ANU College of Law, Australian National University, Canberra, Australia. This article is a revised version of the author’s LLB Honours Thesis submitted in 2001. The author is most grateful for the invaluable guidance of Professor Simon Bronitt as supervisor and the constructive comments of Miriam Gani as marker. The author would also like to thank Henry Carr for his cogent input on both original and revised versions of the paper and the two anonymous reviewers for their comments.

[1] Andrew Ashworth, Principles of Criminal Law (4th ed, 2003) 90; United Kingdom Law Commission, A New Homicide Act for England and Wales?, Consultation Paper No 177 (2005) 8.

[2] Andrew Ashworth, ‘The Elasticity of Mens Rea’ in C F H Tapper (ed), Crime Proof and Punishment (1981) 53; Barry Mitchell, ‘In Defense of a Principle of Correspondence’ [1999] Criminal Law Review 195, 198; Barry Mitchell, ‘Public Perceptions of Homicide and Criminal Justice’ (1998) 38 British Journal of Criminology 453, 454.

[3] See, eg, La Fontaine (1976) 136 CLR 62, 97 (Jacobs J); Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387, 399–400 (Kirby J); Attorney-General’s Reference No 3 of 1994 [1997] UKHL 31; [1998] 1 Cr App Rep 91, 93 (Lord Mustill); R v Martineau [1990] 2 SCR 633, 644, 646 (Lamer CJ) and 675–76 (L’Heuruex-Dube). See also Ashworth, Principles of Criminal Law, above n 1, 256 who notes that there is an argument that treason is a more serious offence since it strikes as the very foundations of the state and its social organisations.

[4] R v Lavender [2005] HCA 37; (2005) 218 ALR 521, 544 (Kirby J); Peter Gillies, Criminal Law (4th ed, 1997) 614; Kerry Milte, Allen Bartholomew and Frank Gabally, ‘Abolition of the Crime of Murder and of Mental Condition Offences’ (1975) 49 Australian Law Journal 160; Hyam v DPP [1974] UKHL 2; [1975] AC 55, 98 (Lord Kilbrandon).

[5] R v Lavender [2005] HCA 37; (2005) 218 ALR 521, 554 (Kirby J); Ashworth, Principles of Criminal Law, above n 1, 261; Louis Blom-Cooper and Terence Morris, With Malice Aforethought: A Study of the Crime and Punishment for Homicide (2004) 30, 40.

[6] Discussed and rejected by the Law Reform Commission of Victoria: Law Reform Commission of Victoria, Homicide Report No 40 (1991) 53; the Criminal Law Revision Committee of England: Ashworth, above n 2, 55; the United Kingdom Law Commission: above n 1, 6, 32–33; the Canadian Law Reform Commission: Law Reform Commission of Canada, Homicide, Working Paper No 33 (1984) 40.

[7] Quoted in Law Reform Commission of Victoria, above n 6, 52.

[8] In the Australian Capital Territory, intent to inflict grievous bodily harm will not suffice; the intent must be to cause death: Crimes Act 1900 (ACT) s 12(b). In Tasmania, an intent to inflict bodily harm must be accompanied with actual knowledge on the part of the offender that it was likely to cause death in the circumstances: Criminal Code 1924 (Tas) s 157(1)(b).

[9] New South Wales, South Australia, Victoria and the Australian Capital Territory.

[10] R v Crabbe [1985] HCA 22; (1985) 156 CLR 464. In New South Wales and the Australian Capital Territory it must be foresight of death not merely foresight of grievous bodily harm: Royall v The Queen (1990) 172 CLR 378; Crimes Act 1900 (ACT) s 12(1)(b).

[11] The exception being the Australian Capital Territory.

[12] Crimes Act 1900 (NSW) s 18(1)(a); Criminal Code 1999 (NT) s 162(1)(b)-(c); Criminal Code 1899 (Qld) s 302(1)(b); Criminal Law Consolidation Act 1935 (SA) s 12A; Criminal Code 1924 (Tas) s 157(1)(c); Crimes Act 1958 (Vic) s 3A; Criminal Code 1913 (WA) s 279(2). None of the statutory formulations of the rule in Australia use the term ‘felony murder’. Moreover, the common law distinction between felonies and misdemeanours in Australia has been abolished: Crimes Act 1900 (NSW) s 580E, inserted by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW); Crimes Act 1958 (Vic) s 322B, inserted by the Crimes (Classification of Offences) Act 1981 (Vic); Criminal Law Consolidation Act 1935 (SA) s 5D, inserted by the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 (SA). As a large body of academic work and case law continues to employ the term ‘felony murder’ for convenience this paper will adopt and follow that practice. Nonetheless, it should be remembered that since felony murder has been given statutory expression there is no single form of the rule across Australian jurisdictions. However, all formulations share the common feature that the prosecution is not required to prove that the accused possessed either the intention to kill or inflict grievous bodily harm, or the actual foresight or knowledge that either of those consequences would probably flow from his or her actions.

[13] Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205, 240 (Windeyer J).

[14] James Stephen, A History of the Criminal Law of England (1883) 57.

[15] Ibid 75.

[16] David Lanham, ‘Felony Murder — Ancient and Modern’ (1983) 7 Criminal Law Journal 90, 93.

[17] Attorney- General’s Reference No 3 of 1994 [1997] UKHL 31; [1997] 3 All ER 936, 945 (Lord Mustill).

[18] People v Aaron, 299 NW 2d 304, 307 (Mich, 1980).

[19] Arulthilakan v R [2003] HCA 74; (2003) 203 ALR 259, 277 (Kirby J).

[20] R v Martineau [1990] 2 SCR 633, 645 (Lamer CJ).

[21] See, eg, Peter Burns and R S Reid, ‘From Felony Murder to Accomplice Felony Attempted Murder: The Rake’s Progress Compleat?’ (1997) 55 Canadian Bar Review 75; J L J Edwards ‘Constructive Murder in Canadian and English Law’ (1961) 3 Criminal Law Quarterly 481; Norman Finkel and Stephanie Smith, ‘Principals and Accessories in Capital Felony-Murder: The Proportionality Principle Reigns Supreme’ (1993) 27 Law and Society Review 129; Brent Fisse, Howard’s Criminal Law (5th ed, 1990) 26; Rudolph Gerber, ‘The Felony Murder Rule: Conundrum Without Principle’ (1999) 31 Arizona State Law Journal 763; Rudolph Gerber, ‘On Dispensing Injustice’ (2001) 43 Arizona Law Review 135; Michelle Gilbert, ‘A Comparative Review of States’ Recognition of Reduced Degrees of Felony Murder’ (1983) 40 Washington and Lee Law Review 1601; Isabel Grant and A Wayne MacKay, ‘Constructive Murder and the Charter: In Search of Principle’ (1987) 25 Alberta Law Review 129; Lanham, above n 16; Law Reform Commission of Canada, above n 6; Law Reform Commissioner of Tasmania, Report on Section 157(1)(c) of the Criminal Code Act 1924 Report No 60 (1988); Law Reform Commission of Victoria, above n 6; Mitchell, ‘Public Perceptions of Homicide’, above n 2, 453; Note, ‘Felony Murder: A Tort Law Reconceptualization’ (1986) 99 Harvard Law Review 1918; Timothy Oneill, ‘“Felony Murder” as Senseless Killing’ (2000) 146 Chicago Daily Law Bulletin 5; Nelson Roth and Scott Sundby, ‘The Felony-Murder Rule: A Doctrine at Constitutional Crossroads’ (1985) 70 Cornell Law Review 446, 446; Kenneth Simons, ‘When is Strict Criminal Liability Just?’ (1997) 87 Journal of Criminal Law and Criminology 1075; Stephen, above n 14, 57; James Tomkovicz, ‘The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape our Criminal Law’ (1994) 51 Washington and Lee Law Review 1429; John Willis, ‘Felony Murder at Common Law in Australia — The Present and the Future’ (1977) 1 Criminal Law Journal 231.

[22] Lord Irvine of Lairg, ‘Intention, Recklessness and Moral Blameworthiness: Reflections on the English and Australian Law of Criminal Culpability’ [2001] SydLawRw 1; (2001) 23 Sydney Law Review 5, 17.

[23] David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (3rd ed, 2001) 357; Gillies, above n 4, 12; Mark Findlay, Problems for the Criminal Law (2001) 54; Glanville Williams, Textbook of Criminal Law (2nd ed, 1983) 70; John Smith, Smith and Hogan: Criminal Law (10th ed, 2002) 28–29.

[24] Haughton v Smith [1975] AC 476, 491–92 (Lord Hailsham).

[25] Ashworth, Principles of Criminal Law, above n 1, 88, 159; Ashworth, ‘The Elasticity of Mens Rea’, above n 2, 52. See also Mitchell, ‘In Defence of a Principle of Correspondence’, above n 2, 195; United Kingdom Law Commission, above n 1, 46.

[26] Ashworth, ‘The Elasticity of Mens Rea’, above n 2, 52.

[27] As explicitly acknowledged by the Law Reform Commission quoted in Nicola Lacey, Celia Wells and Oliver Quick, Reconstructing Criminal Law (3rd ed, 2003) 760–61. See also Criminal Law Revision Committee, Offences Against the Person Report No 14 (1980) in John Hostettler, The Politics of Criminal Law Reform in the 19th Century (1992) 111.

[28] Homicide Act 1957 (UK) s 1.

[29] United Kingdom, Parliamentary Debates, House of Commons, November 1956.

[30] [1961] AC 290.

[31] Ibid 325.

[32] See, eg, Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610, 632 (Dixon CJ); John Beaumont, ‘The Mental Element in Murder: Resolved at Last?’ (1999) 63 Journal of Criminal Law 483, 485; Alan Norrie, Crime, Reason and History (2nd ed, 2001) 27; Williams, above n 23, 81; Blom-Cooper and Morris, above n 5, 29.

[33] Criminal Justice Act 1967 (UK).

[34] Although it concedes that ‘[t]hese principles are far from absolute’: United Kingdom Law Commission, above n 1, 46.

[35] Law Reform Commission of Canada, above n 6, 40.

[36] Ibid 50–51.

[37] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, Part I Canadian Charter of Rights and Freedoms.

[38] Grant and MacKay, above n 21, 129–30.

[39] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, Part I Canadian Charter of Rights and Freedoms s 7.

[40] R v Vaillancourt [1987] 2 SCR 636.

[41] R v Martineau [1990] 2 SCR 633.

[42] The rule has been abolished in Hawaii: HAW. REV. STAT. § § 707-701, 707-701.5 (Supp. 1992); Kentucky: KY. REV. STAT. ANN. § 507.020(1)(a); and Michigan: People v Aaron, 299 N W 2d 304, 324–26 (Mich, 1980). Some states have indirectly abolished it by imposing a requirement that the accused be shown to possess a culpable mental state in addition to the culpable mental state required for the underlying offence: see, eg, State v Ortega, 817 P 2d 1196, 1204 (NM, 1991) in which the court imposed a mens rea requirement for felony murder.

[43] Roth and Sundby, above n 21, 460.

[44] Tison v Arizona, [1987] USSC 61; 107 S Ct 1676 (1987); Gregg v Georgia, [1976] USSC 171; 428 US 153 (1976). In fact, the reach of the felony murder rule in some jurisdictions in the United States has been enlarged in the past century through the ‘proximate cause theory’ whereby the accused will be guilty of murder even if he or she (or his or her accomplice) was not the person who actually killed the victim (for example, if a police officer mistakenly shoots the victim): see generally James Hilliard, ‘Felony Murder in Illinois – The “Agency Theory” v the “Proximate Cause Theory”: the Debate Continues’ (2001) 25 Southern Illinois University Law Journal 331; Jennifer De Cook Hatchett, ‘Kansas Felony Murder: Agency or Proximate Cause?’ (2000) 48 Kansas Law Review 1047.

[45] Stephen A Drizin and Allison McGowen Keegan, ‘Abolishing the Use of the Felony-Murder Rule when the Defendant is a Teenager’ (2004) 28 Nova Law Review 507, 535, 542.

[46] People v Aaron, 299 NW 2d 304 (Mich, 1980).

[47] Ibid 316.

[48] Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (3rd ed, 2005) 15.

[49] Lord Irvine of Lairg, above n 22, 7.

[50] Ibid.

[51] Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610.

[52] Ibid 632.

[53] The Model Criminal Code (‘MCC’) has been in the process of being drafted since 1991 by the Model Criminal Code Officers Committee. The aim of drafting the MCC was to establish a criminal code that may be capable of adoption by all Australian jurisdictions with a view to achieving uniformity of criminal laws Australia-wide, or, at the least, to establish a criminal code that could serve as a best practice model for jurisdictions to use, in whole or part, in amending their criminal laws. To date, only the Commonwealth and the Australian Capital Territory have indicated an intention to enact a comprehensive criminal code based on the MCC. See further Matthew Goode, ‘Constructing Criminal Law Reform and the Model Criminal Code’ (2002) 26 Criminal Law Journal 152.

[54] Criminal Code 1995 (Cth) s 5.1(1); Criminal Code 2002 (ACT) s 17.

[55] Criminal Code 1995 (Cth) ss 5.2–5.5; Criminal Code 2002 (ACT) 2002 ss 18 –21.

[56] Law Reform Commission of Victoria, above n 6, 49, 62. This recommendation followed a history of opposition to felony murder expressed by the Victorian Law Reform Commissioner in Law of Murder, Report No 1 (1974) and Murder: Mental Element and Punishment, Working Paper No 8 (1984).

[57] Ibid 50.

[58] Quoted in L Waller and C R Williams, Criminal Law: Text and Cases (10th ed, 2005) 189.

[59] Crimes (Life Sentences) Amendment Act 1989 (NSW).

[60] Graeme Coss, ‘Legislation Comment: Crimes (Life Sentences) Amendment Act 1989 (NSW)’ (1990) 14 Criminal Law Journal 348, 356.

[61] See, eg, A H Manchester, Sources of English Legal History 1750–1950 (1984) 203; Note: ‘Felony Murder: A Tort Law Reconceptualization’, above n 21, 1923. For those who point out the fallacy of this assumption see, eg, Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2nd ed, 2005) 69; Brown et al, above n 23, 9–10; Lindsay Farmer, Criminal Law, Tradition and Legal Order (1997) 100; R v Martineau [1990] 2 SCR 633, 665 (L’Heureux-Dube).

[62] Morissette v United States, [1952] USSC 8; 342 US 246, 250–51 (1952). See also Ashworth, ‘The Elasticity of Mens Rea’, above n 2, 49; Gerber, ‘The Felony Murder Rule: Conundrum Without Principle’, above n 21, 770–71.

[63] Williams, above n 23, 143.

[64] For a general history of homicide see: Stephen, above n 14; Graham Parker, ‘The Evolution of Criminal Responsibility’ (1970) 9 Alberta Law Review 47; Frederick Pollock and Frederic Maitland, The History of English Law (first published 1898, 2nd ed, 1968) vol 1 and 2; J M Kaye, ‘The Early History of Murder and Manslaughter: Part I’ (1967) 83 Law Quarterly Review 365, 368. For a critical positivist account of the emergence of subjective fault and its historical and procedural contingency see Farmer, above n 61.

[65] Stephen, above n 14, 28.

[66] Parker, above n 64, 51–52.

[67] Ibid 52.

[68] Stephen, above n 14, 26.

[69] Matthew Hale, Historia Placitorum Coronae (first published 1736, 1971 ed) vol 1, 447; William Blackstone, Commentaries on the Laws of England (first published 1765–69, 1978 ed) vol 4, 195.

[70] Hale, above n 69, vol 1, 447. See also Blackstone, above n 69, vol 4, 195.

[71] Edward Coke, Institutes of the Laws of England (first published 1628, 1979 ed) pt 3 and 4, 47, 55.

[72] Stephen, above n 14, 55; Hostettler, above n 27, 93.

[73] See, eg, Stephen, above n 14, 57; Owen Dixon, ‘The Development of the Law of Homicide’ (1935) 9 Australian Law Journal Supplement 64, 67; Hostettler, above n 27, 94.

[74] Coke, above n 71, 56.

[75] Michael Foster, Crown Law (first published 1762, 1982 ed) 256.

[76] Ibid 257.

[77] Blackstone, above n 69, vol 4, 198.

[78] See generally Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 232 (Brennan and Toohey JJ); Paul Robinson, ‘A Brief History of Distinctions in Criminal Culpability’ (1980) 31 Hastings Law Journal 815, 845; Waller and Williams, above n 58, 12.

[79] Farmer, above n 61, 150.

[80] Blackstone, above n 69, vol 4, 201.

[81] Dixon, above n 74, 64.

[82] Robinson, above n 78, 845.

[83] Stephen, above n 14, 95; Hostettler, above n 27, 99; A H Manchester, A Modern History of England and Wales 1750–1950 (1980) 198.

[84] R v Lavender [2005] HCA 37; (2005) 218 ALR 521, 528 (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[85] See, eg, Stephen, above n 14, 57; Rollin Perkins, ‘A Re-examination of Malice Aforethought’ (1934) 43 Yale Law Journal 537, 547–48; J W Cecil Turner, Russell on Crime (12th ed, 1964) vol 1, 477.

[86] Crimes Act 1900 (NSW) s 18(1)(a); Criminal Code 1999 (NT) s 162(1)(a); Criminal Code 1899 (Qld) s 302(1)(a); Criminal Code 1924 (Tas) s 157(1)(b); Criminal Code 1913 (WA) s 279(1)(a); Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

[87] DPP v Smith [1961] AC 290; Hyam v DPP [1974] UKHL 2; [1975] AC 55; Leung Kam-Kwok v R (1985) 81 Cr App R 83; R v Woollin [1998] UKHL 28; [1998] 3 WLR 382.

[88] Ashworth, Principles of Criminal Law, above n 1, 88.

[89] See, eg, Law Reform Commission of Victoria, above n 6, 49, 54; Model Criminal Code Officers Committee, Chapter 5: Fatal Offences Against the Person Discussion Paper (1998) 55; Attorney-General’s Reference No. 3 of 1994 [1997] UKHL 31; [1997] 3 All ER 936, 945–46 (Lord Mustill); R v Powell and English [1997] UKHL 45; [1997] 4 All ER 545, 551–52 (Lord Steyn); R v Cunningham [1981] UKHL 5; [1981] 2 All ER 863, 871 (Lord Edmund-Davies).

[90] Charlie v The Queen [1999] HCA 23; (1999) 199 CLR 387, 412 (Gleeson CJ and McHugh J agreeing).

[91] Ashworth, Principles of Criminal Law, above n 1, 263; Bronitt and McSherry, above n 61, 176; Smith, above n 23, 90–91; Waller and Williams, above n 58, 162; Williams, above n 23, 254.

[92] Ashworth, Principles of Criminal Law, above n 1, 201–2. See, eg, Latimer (1816) 17 QBD 369; R v Supple (1870) 1 VR (L) 151.

[93] Gore [1572] EngR 5; (1611) 77 ER 853; Saunders and Archer (1575) 75 ER 706 discussed in Williams, above n 23, 254.

[94] See also L’Heureux-Dube J’s examination of murder provisions across Australia, England, New Zealand and the United States and her Honour’s conclusion that ‘no other common law jurisdiction has found that fundamental justice is offended by something less than an exclusive subjective foresight standard for the crime of murder:’ R v Martineau [1990] 2 SCR 633, 666–72.

[95] Manchester, Sources of English Legal History, above n 61, 204. As much was explicitly acknowledged by Stephen J in Cundy v Le Coq (1884) 13 QBD 207, 209.

[96] Farmer, above n 61, 123; Gillies, above n 4, 12, 13; Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws: Critical Perspectives (2004) 61; Waller and Williams, above n 58, 10–11.

[97] He Kaw The v The Queen [1985] HCA 43; (1985) 157 CLR 523, 533, 590.

[98] Brown et al, above n 23, 448.

[99] This presumption is now enshrined in the Commonwealth and Australian Capital Territory criminal codes: Criminal Code (Cth) s 5.6; Criminal Code 2002 (ACT) s 22. In both of these Codes, it is expressly stated that while an offence consists of physical elements and fault elements, the law may provide that there is no fault element for some or all of the physical elements: Criminal Code (Cth) s 3.1(2) and Criminal Code 2002 (ACT) s 11.

[100] Cameron v Holt (1980) 142 CLR 34; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, both endorsing Wright J’s statement to this effect in Sherras v de Rutzen [1895] 1 QB 918, 921.

[101] Bronitt and McSherry, above n 61, 187.

[102] Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225, 228.

[103] Ashworth, Principles of Criminal Law, above n 1, 5; Findlay, Odgers and Yeo, above n 48, 20; Gillies, above n 4, 13; Williams, above n 23, 70.

[104] Gillies, above n 4, 85–87; Findlay, Odgers and Yeo, above n 48, 20; Tomkovicz, above n 21, 1427, 1452–53; Burns and Reid, above n 21, 103. Cf Celia Wells, ‘Swatting the Subjectivist Bug’ [1982] Criminal Law Review 209, 218; Bronitt and McSherry, above n 61, 186–87; McSherry and Naylor, above n 96, 61.

[105] Gillies, above n 4, 85. See also Ashworth, Principles of Criminal Law, above n 1, 168–69.

[106] The Australian Institute of Criminology reports that 96 per cent of offences are processed in Magistrates Courts: Australian Crime: Facts and Figures 2002 quoted in McSherry and Naylor, above n 96, 51. See also Bronitt and McSherry, above n 61, 187; Gillies, above n 4, 88. For the situation in the United Kingdom see Lacey, Wells and Quick, above n 27, 59.

[107] Bronitt and McSherry, above n 61, 187; Lacey, Wells and Quick, above n 27, 5.

[108] [1985] HCA 43; (1985) 157 CLR 523.

[109] [2005] HCA 59; (2005) 221 ALR 503.

[110] The only cases in which the defence could be invoked would be those involving, for instance, a mistaken belief in the existence of a licence allowing possession of the dangerous drug: Ibid 509 (Gleeson CJ).

[111] Ibid 509 (Gleeson CJ), 538–89 (Callinan and Heydon JJ).

[112] Ibid 538 (Callinan and Heydon JJ).

[113] See, eg, Criminal Code 2002 (ACT) s 604 and also ss 608, 617; Criminal Code 1995 (Cth) s 302.5 and also ss 303.7, 305.6; Drug Misuse and Trafficking Act 1985 (NSW) s 29; Controlled Substances Act 1984 (SA) s 32(3); Misuse of Drugs Act 2001 (Tas) s 12(2) and also ss 6(2), 7(2); Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(2).

[114] United Kingdom Law Commission, above n 1, 78–89. Smith also discusses the fact that many offences in the Sexual Offences Act 2003 are strict liability offences: Smith, above n 23, 89.

[115] Bronitt and McSherry, above n 61, 69.

[116] Ibid 69–71.

[117] Victorian Law Reform Commissioner, Murder: Mental Element and Punishment, Working Paper No 8 (1984), 22.

[118] C R Williams, ‘Murder: Mental Element and Punishment’ (1984) Annual Survey of Australian Law 44, 47.

[119] United Kingdom, Parliamentary Debates, House of Commons, 27 November 1956, 254.

[120] Ibid 248.

[121] Ibid 266.

[122] Mitchell, ‘Public Perceptions of Homicide’, above n 2, 453; Paul Robinson and John Darley, Justice, Liability and Blame: Community Views and the Criminal Law (1995) 168–81; David Crump and Susan Waite Crump, ‘In Defense of the Felony Murder Doctrine’ (1985) 8 Harvard Journal of Law & Public Policy 359, 363–64.

[123] This point has also been observed by Jennifer De Cook Hatchett who interprets the results of David and Susan Crump’s survey as demonstrating that ‘when presented with actual felony-murder cases studies show that juries agree with the doctrine’: above n 45, 1051.

[124] Mitchell, ‘Public Perceptions of Homicide’, above n 2, 462; Robinson and Darley, above n 122, 178.

[125] Mitchell, ‘In Defense of a Principle of Correspondence’, above n 2, 202.

[126] To the extent that certain jurisdictions employ degrees of murder, as in the United States and as recently proposed by the Law Commission in England, the writer does not object to the view that felony murder killings might be classified as something less than first degree murder.

[127] Quoted in R v Maurangi and Rivett [2000] SASC 347; (2000) 80 SASR 295, 298 (Matheson AJ).

[128] Ibid.

[129] McSherry and Naylor, above n 96, 119; Gerber, ‘The Felony Murder Rule: Conundrum Without Principle’, above n 21, 767, 782; Tomkovicz, above n 21, 1463.

[130] Tomkovicz, above n 21, 1464.

[131] Jeremy Horder, ‘Intention in the Criminal Law — A Rejoinder’ (1995) 58 Modern Law Review 678, 685.

[132] Ashworth, Principles of Criminal Law, above n 1, 158.

[133] McSherry and Naylor, above n 96, 64. Cf Farmer, above n 61, 142.

[134] McSherry and Naylor, above n 96, 60.

[135] [1968] HCA 66; (1968) 119 CLR 47.

[136] [1968] HCA 66; (1968) 119 CLR 47, 63.

[137] See, e.g, Bruce Ledewitz, ‘Mr Carroll’s Mental State or What is Meant by Intent’ (2001) 31 American Criminal Law Review 71, 71–73.

[138] [1984] UKHL 4; [1985] AC 905.

[139] Quoted in ibid 917 (Lord Bridge).

[140] 194 A 2d 911 (Pa, 1963).

[141] Ledewitz, above n 137, 85.

[142] Ibid 87.

[143] Ibid 89.

[144] Ibid 94.

[145] Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, 551 (Kirby J).

[146] Bronitt and McSherry, above n 61, 173.

[147] Ledewitz, above n 137, 73.

[148] Aviva Ziegler, interview with Karl Kramer in A Dee Cameron Company Production, ‘Facing the Demons’, 1999.

[149] Some jurisdictions use evidence of premeditation as an aggravating factor: see, eg, Canada (premeditation is one circumstance elevating murder to first degree murder); France (killing not only with intent to kill but with premeditation elevates the offence from meutre to assassination); California (premeditation elevates second degree murder to first degree murder): United Kingdom Law Commission, above n 1, Appendix D.

[150] For an examination of the significance of danger and dangerous offenders in the modern criminal law see John Pratt, Governing the Dangerous: Dangerousness, Law and Social Change (1997).

[151] Gordon, ‘Subjective and Objective Mens Rea’ [1975] 17 Criminal Law Quarterly 355, 389–89 quoted in R v Martineau [1990] 2 SCR 633, 657 (L’Heureux-Dube).

[152] Coke, above n 71.

[153] It is beyond the scope of this paper to examine the question of whether Coke intended his statements to be interpreted as endorsing that broad proposition, even if that is a literal interpretation which may be open on a reading of the text. Nonetheless, it is a question that would require further examination in assessing the strength of any criticism of Coke.

[154] Stephen, above n 14, 57.

[155] Lanham, above n 16, 92–94.

[156] People v Aaron 299 NW 2d 304, 309–10 (Mich, 1980) (Fitzgerald J); Guyora Binder, ‘The Origins of American Felony Murder Rules’ (2004) 57 Stanford Law Review 59, 83–85.

[157] United Kingdom Law Commission, above n 1, 9.

[158] Foster, above n 75, 258.

[159] Binder, above n 156, 91; Perkins, above n 85, 560.

[160] Binder, above n 156. 91–92.

[161] See, eg, R v Greenwood (1857) 7 Cox CC 404; R v Horsey [1862] EngR 160; (1862) 3 F & F 287; R v Serne (1887) 16 Cox CC 311.

[162] See, eg, United Kingdom Law Commission, above n 1, 9.

[163] Binder, above n 156, 63–34, 73–98, 105–7.

[164] [1920] AC 479.

[165] [1920] AC 479, 493.

[166] [1922] HCA 4; (1922) 30 CLR 246.

[167] [1967] HCA 2; (1967) 121 CLR 205, 230 (Taylor and Owen JJ), 241 (Windeyer J). The comments are obiter dicta because that case was not a decision on felony murder at common law but rather the statutory formulation of felony murder under Crimes Act 1900 (NSW) s 18(1)(a).

[168] (1973) 4 SASR 353.

[169] Ibid 403.

[170] Ibid 401.

[171] Crimes Act 1900 (NSW) s 18(1)(a).

[172] A useful table of the offences punishable by imprisonment for life or 25 years under the Crimes Act 1900 (NSW) is annexed to the reasons of the NSW Court of Criminal Appeal in R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80. Note that some drug offences may come within this bracket and arguably are not in themselves dangerous e.g Drug Misuse and Trafficking Act 1985 (NSW) s 33(3) provides for life imprisonment for certain drug offences where the quantity of drug involved meets the ‘large commercial quantity’ as set out in Column 5 of Schedule 1.

[173] Crimes Act 1958 (Vic) s 3A; Criminal Law Consolidation Act 1935 (SA) s 12A.

[174] Criminal Code 1999 (NT) s 162(1)(b)-(c); Criminal Code 1899 (Qld) s 302(1)(b); Criminal Code 1924 (Tas) s 157(1)(c); Criminal Code 1913 (WA) s 279(2).

[175] Quoted in The Queen v Hind & Anor, [1995] QCA 202; 80 A Crim R 105 (Fitzgerald P).

[176] Quoted in R v Butcher [1986] VicRp 4; [1986] VR 43, 56.

[177] Commonwealth v Almeida, 362 Pa 596, 68 A 2d 595, 601 (1949).

[178] Brown et al, above n 23, 509; Hostettler, above n 27, 92–93; Lanham, above n 16, 90; Tomkovicz, above n 21, 1430.

[179] Of those homicides in Australia that can be classified as ‘instrumental homicides’ (that is, homicides conducted for explicit future goals), the most common types are those that occur during the commission of another crime, such as robbery. In 2003–04 for example, 39 homicides (14 per cent of total homicides) occurred in the course of another crime. The majority of these occurred during a robbery (62 per cent), a break and enter (13 per cent) or a theft (18 per cent): Jenny Mouzos, ‘Homicide in Australia: 2003–04 National Homicide Monitoring Program’ (Annual Report No 66, Australian Institute of Criminology, 2005) 6–7, 19.

[180] Ziegler, interview with Kramer, above n 148.

[181] Cf Arulthilakan v The Queen [2003] HCA 74; (2003) 203 ALR 259, 277 (Kirby J).

[182] [1999] NSWSC 1131 (Unreported, Greg James J, 26 November 1999); sentence upheld on appeal: R v Petrinovic [2001] NSWCCA 118 (Unreported, Stein JA, Wood CJ and Studdert J, 2 April 2001).

[183] [1999] NSWSC 1131 (Unreported, Greg James J, 26 November 1999) 18.

[184] (Unreported, NSWCCA, Gleeson CJ, Cole JA and Sperling J, 3 April 1995).

[185] Ibid 3–4.

[186] [2001] NSWCCA 180 (Unreported, Meagher JA, Hulme J and Smart AJ, 8 March 2001).

[187] Ibid [12]–[13].

[188] See, eg, Cole v South Tweed Heads Rugby League Football Club Ltd & Anor [2004] HCA 29; (2004) 217 CLR 469; Mulligan v Coffs Harbour City Council (2005) 221 ALR 464; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 221 ALR 711; Chief Justice Spigelman, ‘Negligence: Is Recovery for Personal Injury too Generous?’ (Speech delivered at the 14th Commonwealth Law Conference, London, 14 September 2005).

[189] McSherry and Naylor, above n 96, 118.

[190] Seibold, ‘The Felony-Murder Rule: In Search of a Viable Doctrine’ (1978) 23 Catholic Lawyer 133, 137. See also Gerber ‘On Dispensing Injustice’, above n 21, 150.

[191] See, eg, Blom-Cooper and Morris, above n 5, 34. In July 2005, the United Kingdom government announced a review of the law of murder in England and Wales. To this end, the United Kingdom Law Commission released a Consultation Paper in December 2005 inviting comments on proposals for reform: United Kingdom Law Commission, above n 1.

[192] William Wilson, ‘Murder and the Structure of Homicide’ in Andrew Ashworth and Barry Mitchell (eds), Rethinking English Homicide Law (2000) 34.

[193] Ibid 27. See also 44–46.

[194] Victorian Law Reform Commission, above n 6, 63. These statistics have been cited as evidence that felony murder is rarely used in, eg, McSherry and Naylor, above n 96, 119.

[195] That such a course is permissible was discussed and affirmed in R v Spathis; R v Patsalis [2001] NSWCCA 476 (Unreported, Heydon JA, Carruthers and Smart AJJ, 29 November 2001). See also R v Ng [2002] VSC 561; (2002) 136 A Crim R 415, [7], [12].

[196] See the comments of Teague J in R v Ng [2002] VSC 561; (2002) 136 A Crim R 415, [9].

[197] In Victoria, the felony murder rule was given statutory expression in 1981 by the insertion of s 3A into the Crimes Act 1958 (Vic). Williams has noted that the intention of the legislature was to preserve the existing common law rule but the actual terms of s 3A would appear to render it more restrictive because it requires that the underlying offence be one ‘the necessary elements of which include violence’. Williams contends that there are few crimes that have violence as a necessary element (that is, they are impossible to commit without violence) and it would not include, for example, offences such as rape, arson and kidnapping: Williams, above n 118, 44. See also Fisse, above n 21, 68–89; McSherry and Naylor, above n 96, 117; Waller and Williams, above n 58, 172.

[198] The Report does not state how many murder prosecutions or convictions occurred in that period or the total number of homicide incidents. However, in the year 2003–04 for example, there were 68 incidents of homicide in Victoria, of which 58 were classified as murder (charges rather than convictions): Mouzos, above n 179, 26–27.

[199] See above n 179.

[200] Gregor Urbas, ‘How it’s possible to get away with manslaughter in the ACT’, The Canberra Times (Canberra), 29 July 2004, 17.

[201] Ibid.