Survivor claims that gun was fired accidentally

Earlier this year, 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 you murder someone who 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.

case a - The case for the defence case b - The case for the prosecution
  • The first shot killed the victim
  • The victim's death was an accident
  • The defendant could not be guilty of murder, manslaughter or attempted murder for firing the second and third shots because the victim was already dead
  • Firing the second and third shots was an extremely poor decision, but it was not murder
  • Even if the first shot was accidental, when the defendant fired the second and third shots, he believed that the victim was still alive and acted to kill him
  • The offender deserved a significant jail term, as he clearly intended to kill the victim

So, which case won? Cast your judgment below to find out

Vote case A – The case for the defence
Vote case B – The case for the prosecution

Jessica Mackay
Criminal law
Stacks Law Firm

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