Attempted Murder

Published: 26 November 2020
Published: 26 November 2020
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Attempted Murder – Queensland

Attempted murder is a serious criminal offence, which is generally punishable by actual imprisonment. For an attempted murder case, the prosecution sets out to prove that the person charged unlawfully attacked or did something to another person with the intention of killing them, using means capable of doing so, but without death resulting.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of attempted murder.

If you face an attempted murder charge, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 306 Criminal Code (Qld)

Section 306 of the Criminal Code makes attempted murder (attempt to murder) an offence in Queensland. The law states:

Attempt to murder

(1) Any person who—

(a) attempts unlawfully to kill another; or

(b) with intent unlawfully to kill another does any act, or omits to do any act which it is the person’s duty to do, such act or omission being of such a nature as to be likely to endanger human life;

(2) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.

(3) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.

Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit an offence of attempted murder in association with being a participant of a criminal organisation.

Meaning of ‘attempt’

Section 4 of the Criminal Code contains a definition of the word ‘attempt’:

When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.

In R v Leavitt [1985] 1 Qd R 343, the Court of Criminal Appeal concluded that this definition did not apply to offences in which an ‘attempt’ is an element of the offence. From that authority, it would appear that section 4 ought to have no application to a charge of attempted murder. On that basis, the meaning of ‘attempt’ would be applied according to its meaning in ordinary usage. However, since that decision, a different decision (R v O’Neill [1996] 2 Qd R 326) contains a comment by Justice Dowsett that indicates section 4 does apply to a charge of attempted murder. A similar comment was made by the Chief Justice in R v Witchard, Oakes & Barnett; ex parte Attorney-General [2005] 1 Qd R 428 at paragraph [8]. Section 4 was also adopted in the unanimous decision of the Queensland Court of Appeal in R v Ridgeway [2020] QCA 38.

While the resolution of the meaning of ‘attempt’ for charges of attempted murder is not free from doubt, it may not matter in the majority of cases due to the overlap between the ordinary meaning of the word and how it is defined in section 4 of the Criminal Code (Qld). However, it is possible that in some cases, it may matter how the word ‘attempt’ is defined for a jury.

Attempted Murder: Elements

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

For an attempted murder case, the prosecution sets out to prove that the person charged unlawfully attacked or did something to another person with the intention of killing them, using means capable of doing so, but without death resulting. There are different ways elements may be expressed, depending on the issues in a given case. However, elements the prosecution must always prove for a charge of attempted murder under section 306(1)(a) of the Criminal Code are as follows:

  1. The person charged had an intention to kill;
  2. The person charged put their intention to kill into execution by means adapted to its achievement or fulfilment; and,
  3. The person charged did some overt act to manifest their intention to kill.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty for the commission of an offence. For instance, a person may be found guilty if they aided or encouraged another person to commit the offence of attempted murder.

In some cases, the prosecution will also be required to prove any circumstances of aggravation relied upon. For attempted murder, the only circumstance of aggravation that can apply is when the offence is committed by a defendant in association with being a participant of a criminal organisation.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as attempted murder, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For a charge of attempted murder, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘attempted murder’

The law requires the prosecution to prove that the attempt to murder was unlawful. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty. In Queensland, possible defences include:

  • Accident
  • Defence of another
  • Extraordinary emergency
  • Insanity
  • Mistake of fact
  • Self defence
  • Unwilled act

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of attempted murder should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Excluded defences for ‘attempted murder’

In Queensland, the same defences do not apply to every offence. Section 306 of the Criminal Code, which is the law that makes attempt to murder an offence, does not require proof that an ‘assault’ occurred. For that reason, ‘provocation’ is not available as a defence for attempted murder: McGhee v R [1995] HCA 69.

Penalties & Sentences

Maximum Penalty

The maximum penalty for attempted murder in Queensland is life imprisonment.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, attempted murder does when a person is convicted of the following circumstance of aggravation:

  1. When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.

Sentencing in Queensland

For a charge of attempted murder, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a violent offence, the law states that the court must have primary regard to the following considerations:

  • the risk of physical harm to any members of the community if a custodial sentence were not imposed;
  • the need to protect any members of the community from that risk;
  • the personal circumstances of any victim of the offence;
  • the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
  • the nature or extent of the violence used, or intended to be used, in the commission of the offence;
  • any disregard by the offender for the interests of public safety;
  • the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
  • the antecedents, age and character of the offender;
  • any remorse or lack of remorse of the offender;
  • any medical, psychiatric, prison or other relevant report in relation to the offender;
  • anything else about the safety of members of the community that the sentencing court considers relevant.

If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

The significant penalties for attempted murder often reflect the harm suffered by victims of crime, as well as the accompanying intent. The unlawful and intentional attempt to kill another person makes it one of the most serious offences in the Queensland Criminal Code. In R v Tevita [2006] QCA 131, the Court of Appeal stated at paragraph [10]:

An attempt to kill is, like other forms of attempt, a crime of intention. To that extent all attempts are alike. However, the severity of the sentence imposed necessarily varies with the seriousness of the injuries inflicted on the person targeted; and the extent to which the intention was put into effect by the accused’s acts. The contrast is between a single blow, or stroke or shot, and a repetition of the acts intended to cause death. It follows that punishments differ greatly from one case to another. It is even possible to locate instances in which only a bond has been imposed for an attempted murder. In some cases, two of which we mention later, the maximum sentence of life imprisonment has been imposed. On the other hand, Williams JA in R v Rochester [2003] QCA 326, referring to past sentences in this field, recently reiterated that the approximate range for attempts to kill was generally from 10 years to about 17 years imprisonment.

Leaving aside any mandatory minimum penalties that may apply, punishment for attempted murder charges generally involve sentences of imprisonment, which can extend to life imprisonment. Penalties for this charge frequently sees the Supreme Court of Queensland deem it a ‘serious violent offence’, which mandates an offender serve 80% of the imprisonment before they are eligible for release.

Significant Cases

The charge of attempted murder has involved a number of significant legal decisions over time, including in the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with attempted murder.

High Court of Australia

In Alister v The Queen [1984] HCA 85, the Chief Justice explained the strict proof needed for a charge of attempted murder, which goes beyond proof that the person charged acted with reckless indifference to the possibility or probability of death from their acts or omissions. It was stated by the Chief Justice:

One constituent element of the crime of an attempt is “an intention on the part of the offender to commit the complete offence”: Director of Public Prosecutions v. Stonehouse [1978] AC 55 at p. 68. It follows that a person is not guilty of an attempt to murder unless he intends to kill. “Paradoxically, but inevitably, the law’s requirements on a charge of attempting to commit a crime are stricter than on a charge of actually committing it; for the concept of attempt necessarily involves the notion of an intended consequence”: Smith and Hogan, Criminal Law, 4th ed. (1978), p. 247. Accordingly, a person who attacks another intending to do him grievous bodily harm will be guilty of murder if the victim dies, but not of attempted murder if he does not.

Queensland Court of Appeal

In R v Rogers [2013] QCA 52, the Court of Appeal allowed an appeal against conviction on the basis that the trial judge had not adequately explained the concept of grievous bodily harm to the jury, even though there was no criticism of the directions given for the charge of attempted murder. The Court of Appeal found that there was a risk that the jury may have had the impression that an intent to do grievous bodily harm is something beyond a mere intention to hurt.

The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of attempted murder:

Attempted Murder - Criminal Law Expertise