Abolition Of Constructive Murder Rule
- IJLLR Journal
- May 1
- 1 min read
Nyuol Justin Y. Arop, Esq., BA(Winnipeg), MILIR (UNSW), JD (Sydney), Chairperson, South Sudan Human Rights Commission
ABSTRACT:
This paper argues for the abolition of constructive murder rule as conceptualized in the Australian jurisdiction. The paper exposes the idiosyncrasy inherent to the rule of constructive murder as pertaining homicide. And because the formulation of the rule relies on transferring the element of intent for the commission or omission of a foundational offence to the act of killing so as to find culpability for the homicide, this paper argues that such construction of murder obliterates a fundamental pillar of criminal law: the concurrence of a criminal act with a criminal mind. The variance in the formulation of murder as provided for by statute and its formulation within the common law doctrine of ‘constructive murder’ confuses practitioners and operates unjustly to those individuals accused and exposed to the wrath of the rule of constructive murder. This paper, therefore, asserts that prudence dictates the rule be abandoned for the circumstance that led to its creation, in the first place, have long ceased to exist.
Keywords: murder, mens rea, felon(y), homicide
