Duca v The Queen

[2020] VSCA 209

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Murder
3. › Statutory murder
4. › Relationship between common law murder and s 3A murder
5. › Whether s 3A murder is a separate offence or alternative means of proving murder
6. › Whether acquittal on common law murder required before verdict on s 3A murder
7. › Crimes Act 1958 (Vic), ss 3, 3A
1. Criminal Law
2. › Criminal procedure
3. › Indictment
4. › Form of indictment
5. › Alternative charges
6. › Whether two charges of murder may be pleaded on single indictment for alternative modes of proof of single offence
7. › Criminal Procedure Act 2009 (Vic), ss 159, 166, sch 1 cl 5(2)
1. Criminal Law
2. › Criminal procedure
3. › Jury verdicts
4. › Alternative verdicts
5. › Common law red pencil test
6. › Statutory alternatives
7. › Third class of alternative offence
8. › Criminal Procedure Act 2009 (Vic), s 239(1)
9. › Crimes Act 1958 (Vic), s 421(1)

Quick Take

Murder contrary to s 3A(1) of the Crimes Act 1958 (Vic) is not a separate offence from common law murder but an alternative means of proving the single offence of murder. A jury is not required to acquit on common law murder before returning a verdict on s 3A murder. The Court of Appeal approved the holding in R v Ng [2002] VSC 561 that there is only one crime of murder with one penalty. The propriety of pleading two charges of murder on a single indictment (one common law, one s 3A) remains an open question, with the joint reasons provisionally supporting the practice and Priest JA considering it contrary to law.