Is it attempted murder if the victim is already dead? Which case won?
Survivor claims gun was fired accidentally
In 2015, a very unusual murder trial was heard in the Victorian Supreme Court. The events unfolded when two men got into a fight and struggled over a gun. The gun went off and one of the men was shot in the head. The survivor claimed that that shot was fired by accident.
The victim collapsed on the floor and the surviving man saw the body twitch and jerk. The record of the police interview with the surviving man sets out what happened next.
Q: All right. And what happened after that?
A: Well, I couldn’t – I didn’t know what to do so – yeah, I didn’t want the bloke suffering so I shot him again, yeah, ’cause he wasn’t dead. Yeah.
Q: And so what happened then?
A: I don’t know. I went and looked at his room and found some more bullets, and I shot him again, yeah, to stop him from suffering.
Q: Yeah. So when you shot him that second time you said that that was so that he wouldn’t suffer.
A: ’Cause I wasn’t sure if he was alive or dead.
Did the victim die after the first shot was fired?
The surviving man was charged with murder. However, at his trial, medical evidence suggested the twitching and jerking could have been the victim’s body making involuntary responses. In other words, he may have already been dead when the defendant shot him a second and third time.
Can it be murder or attempted murder if someone is already dead?
Both prosecution and defence lawyers said they had never encountered such a strange murder case, and could find no legal precedent to draw on.
However, the jury still had to decide whether the accused was guilty or not guilty of murder, attempted murder or manslaughter.