在NSW 谋杀罪是罪案条例18条规定的。s. 18 of the Crimes Act which provides:

  • 18. 
    • (1) 
      • (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of an act obviously dangerous to life, or of a crime punishable by death or penal servitude for life.
      • (b) Every other punishable homicide shall be taken to be manslaughter.
    • (2) 
      • (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
      • (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his own defence.”


  • 如果王子茜辩称当时吸毒了,处于一种不受控制的状态,不知道自己在干什么。并能提供相应的吸毒的证据。那么有可能摆脱掉谋杀的罪名。(Voluntariness)

根据Ryan v The Queen [1967] ALR 577 ( 抢劫犯犯枪走火杀人) 这个判例中,法官 Barwick 说在犯谋杀罪的时候,嫌疑人必须是处在一种有意识状态,吸毒后杀人可以,律师可以辩称是当事人处于一种无意识状态。那么就不能适用于谋杀。 (Barwick Cj held : “It is basic, in my opinion, that the act” of the accused, of which one or more of the various elements of the crime of murder as defined must be predicated must be a willed”, a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended.”)

如果王子茜真的辩称吸毒失去清晰意识。同样根据Barwick CJ 在 Ryan v R 一案的判决中. :at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act”. 检察官要证明吸毒后的行为肯定不是voluntary Act 就有一定的难度。有同学会问了,这种吸毒杀人的借口很low啊,正常人都知道这个是罪犯要开脱罪责,给自己找借口。可是根据 Murray v the Queen (和别人争吵中,枪走火杀人) 的判例, 5位澳洲high court 的大法官 By Gaudron, Gummow, Hayne and Callinan JJ, Kirby J contra, 一致认为在谋杀罪的定罪上必须要考虑所有因素的可能性beyond reasonable doubt. (The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. That required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of guilt.) 所以只要能在谋杀的某个因素上找的可以reasonable doubt 的条件或者可能性,就不可以给被告定罪。


  • 如果王子茜辩称房间里有其他人一起把受害人推下楼的,自己有参与,但是并不完全是自己的过错。(cause)

根据 R v Withers (申请人吸毒致死还是伤害致死)的判决里133 段法官的意见,TThe First is that, in relation to murder, the prosecution must establish that the conduct of the accused, whether by act or omission, contributed significantly to the death of the victim. However, it need not establish that the conduct was the sole, direct, or immediate cause of death. The purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. 从法 从法律上说不需要证明王子茜的举动是唯一的直接的或者是最近的那个造成申请人死亡的举动。

同样的在Royall v The Queen, (受害人被逼跳楼死亡)中 法官 Brooking JA  认为:”… the infliction of injuries by two or more assailants, acting independently and at substantially the same time, …, it is enough for the jury to enquire whether the attack of the accused made a substantial contribution to the death.“ 甩锅给其他人在这种两个人一起犯案的谋杀案中不是一个好的借口。

  • 如果王子茜辩称是由于受害人身体本来就不好,没想到这么经不起折腾,她就这么死了。(Cause)

这种说法一般也很难被接受。一般根据R v Blaue (耶和华见证人不接受输血)中法官 Lawton的决定 Quote:“ It was the policy of the law that a person who used violence on another has to take his victim as he found him. (Thin-skull Rule)  It was not open to an assailant to assert that the victim’s whatsoever behavior is unreasonable.  即使周淑英像纸片一样,一吹就起来,然后掉下楼摔死了。那么王子茜也逃脱不了罪责.

  • 如果王子茜辩称我只是在阳台推了受害人,是地心引力把受害人吸引下去。所以我并没有谋杀。这种说法就属于法律上不能接受的说法之一。(Fault: intent and reckless )

根据 Queen v Hallett (把人打晕留在海边,被涨潮的水淹死)南澳supreme court 几位法官Bray CJ., Bright and Mitchell JJ. 的意见,如果犯罪嫌疑人可以预见推受害人的举动,会导致受害人死亡的后果。那么不论她的意图是什么,她的行为只要造成了受害人的死亡,那么就满足了谋杀定罪的要件之一。quote:”If the accused voluntarily and consciously commits the act foreseeing death or grievous bodily harm as a likely result, then even if he hopes, desires and wishes that it will not, either he can be said really to intend to kill or cause grievous bodily harm because his determination to proceed notwithstanding that foresight amounts to such intention and the hope, desire and wish in question is entirely subsidiary, or else if that hope, desire and wish can properly be labeled an intention he still acts with malice aforethought by recklessness. In either case, the result is the same。”

  • 如果王子茜辩称自己本来没想把受害人推下去,谁知道阳台的栏杆过低,受害人掉下去死了。这种说法是如果没有她后面追下楼捅人的情景是可以脱罪的。(Fault: intent and reckless)

根据R v Crabbe (卡车司机开车撞入酒吧致死多人) 中法官的看法quote:”The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle.” 虽然如果嫌疑人没有杀人动机,即使知道自己的行为有致人死亡的可能性,那么也是不可以定罪谋杀的,但是王子茜后面的追杀的行为,显示她有明显的杀人动机,所以这种说法会自相矛盾,不能让她解套。并且后面的动机是可以可以和前面的行为结合起来定罪的。根据 Fagan v COMMISSIONER OF METROPOLITAN POLICE, 法官认为 :”(2) That although the elements of actus reus and mens rea were
necessarily present at the same time in an assault, it was not
necessary for the mens rea to be present at the inception of the
actus reus: it could be superimposed on an existing act provided
it was a continuing act.“ 意识是 犯罪目的和犯罪行为可以不在同时发生,只要是持续的行为,后面的犯罪意图可以和前面的犯罪行为结合起来。

同样在 Meli V R 的案例中,法官同样认为谋杀罪中犯罪目的和行为可以在不同阶段存在。quote :”

Held, that it was impossible to divide up what was really one transaction in that way. The appellants set out to do all those acts as part of, and to achieve, their plan, and it was much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before it in fact was, therefore they were not guilty of murder.  不需要把犯罪行为分段,罪犯为了只要最后达成了犯罪目的,不需要所有行为都有犯罪意图。

  • 如果王子茜说后面下去补刀是和受害人闹着玩,没想到一失手,把她杀了。这种说法也是无济于事的。

根据 Boughey v The Queen (受害人在做爱中被掐死了)里法官的意见:“The judge had properly directed the jury about the phrase likely to cause death”. The word likely”, so used, conveys a notion of substantial, real and not remote chance, regardless of whether it is more or less than 50 per cent. It should not be construed to mean more likely than not or to assume a specific degree of mathematical probability not conveyed as a matter of ordinary language or by the statutory context.“  嫌疑人应该知道这一刀子下去,或者这种舞刀子的行为是很可能 “likely” 导致受害人死亡或者严重伤害的。所以说用刀子失手杀人,不能脱罪。并且法官Brennan 说 That is the risk which, if foreseeable by sober
and reasonable people, makes an unlawful act dangerous so that
death which is caused thereby is manslaughter. As Staughton J.,
speaking for the Court of Appeal in Reg. v. Mitchell (57) said:
“There need not be any intention to injure or kill, or any
foresight that injury or death would be caused, provided that all
sober and responsible people would have recognised the act to
be dangerous.”  如果受伤害的风险是可以被一个正常人预见的,那么就谋杀罪就可以成立,并不需要一定有杀人的意图。

  • 如果王子茜辩称本来是准备吓一下受害人的,但是没想到受害人自己跳楼了,然后我下楼补刀了。是她跳楼主要导致死亡的,我补刀不能负责,至少不能负全责。(Cause Intent and reckless)

根据 Royall V Queen(受害人被迫跳楼) 里面法官的决定 :“ if a person creates a situation intended to kill and it does kill, it is no answer to a charge that is caused death at a time and in a way that was to some extent unexpected。”只要王子茜造成了受害人不得不跳楼的情形,受害人跳楼死了,那么她就要负责。所以谋杀罪名可以成立。 此外在Royall V R这个案例中,法官Mason 认为:“ Where the conduct of the accused  induces in the victim a well founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape, and the victim is injured in the course of escaping, the injury is caused by the accused’s conduct. 如果王子茜造成了受害人跳楼以躲避伤害,那么王子茜就要负责。

根据 在R v Robbins ,(一群人打一个人,有一个人拿木头造成了严重的伤害,把人打死了,其他人没有造成致命伤) 法官引用了在 Royall v R 里面的法官的意见:“ an act causes Death if it is a substantial operating cause of death. Where there is more than one cause of death, the question is whether “an act of the accused substantially contributed to the death. The word “substantial” means no more than not de minimis. 补刀只要是造成死亡的原因之一,谋杀罪名就可以成立。