Mistaken identity and transferred malice in murder.

The question.

A shooting aimed at one person kills another. The person who died had nothing to do with the dispute. It is a tragedy that has become sadly familiar in reporting on gang violence. As a matter of law, it raises a clean question. Murder requires an intention to kill, or reckless indifference to human life, or an intention to cause grievous bodily harm. If the intention was to kill a particular person, and a different person died, is the mental element still made out?

What is transferred malice?

The common law answers with the doctrine of transferred malice. The guilty intention is transferred from the intended victim to the actual victim. If a person shoots at one person intending to kill them, but kills a bystander, the intention to kill is treated as satisfying the mental element for the death of the bystander. The identity of the victim is not something the Crown has to prove. Murder under section 18 of the Crimes Act 1900 (NSW) is concerned with an intention to kill a person, not a named person.

The doctrine is old and well settled. It reflects a simple moral judgment. A person who sets out to kill and does kill should not escape liability for murder just because they were a poor shot, or mistook their target. The wrong is the same.

Does mistaken identity reduce it to manslaughter?

No, not by itself. Killing the wrong person does not turn murder into manslaughter, because the intention to kill remains present. Manslaughter is what is left when the mental element for murder is missing, for example an unlawful and dangerous act that causes death without any intention to kill and without reckless indifference to human life. A deliberate shooting, even of the wrong person, does not fit that description. For the fuller framework, see our note on murder and manslaughter offences.

So where are the real defences?

If mistaken identity of the victim is rarely a defence, the defence work goes elsewhere. Three areas usually matter. First, the identity of the offender. In a shooting, the central issue is often whether the Crown can prove who fired. That turns on forensics, on identification evidence, and on the reliability of any witnesses. Second, whether the intention to kill is proved. A death does not always come with clear proof of intent, and the Crown must prove the mental element beyond reasonable doubt. Third, the partial defences. Substantial impairment by abnormality of mind can reduce murder to manslaughter where the mental capacity of the accused was substantially impaired. Extreme provocation is narrow but still exists.

In a case built on the premise that the accused was part of a planned attack, the defence may also test whether the accused was a party to the plan at all, and on what basis liability is said to attach. Our note on joint criminal enterprise explains how the law extends liability to people who agree to a common purpose.

Why the reform followed.

The doctrine of transferred malice already means that a mistaken-identity killing is murder. The recent reforms are aimed further back along the chain, at the planning and the attempts, so that the law can reach the conduct before anyone is killed. That is why the NSW package this week focused on aggravated conspiracy and attempted murder rather than the completed offence. Our note on the new gang-hit laws covers those changes.

Causation and the reach of murder.

Two further points widen the reach of murder in these cases. The first is causation. The Crown must prove that the act of the accused caused the death, but the law does not require the act to be the only cause. An act that substantially contributes to death is enough, and the chain is not broken by ordinary medical treatment or by the frailty of the victim. The second is the range of mental states that make out murder. Beyond an intention to kill, murder is established by an intention to cause grievous bodily harm, or by reckless indifference to human life. A person who fires into a group, not caring whether someone dies, can be guilty of murder even without a settled intention to kill any particular person.

There is also constructive murder, where a death is caused during or immediately after certain serious crimes carrying long maximum penalties. That form does not require any intention to kill at all. Taken together with transferred malice, these rules mean that a death arising from planned violence will almost always be capable of being charged as murder, whoever the person killed turns out to be.

What this means in practice.

For anyone accused in connection with a shooting, the message is that the identity of the person who died will rarely help the defence. The contest is about proof: who did it, what their state of mind was, and whether the Crown can establish the link between the accused and the death to the required standard. Those are hard, technical questions, and they are where a case is won or lost. Early forensic and identification analysis is central to answering them.

Frequently asked.

If you kill the wrong person by mistake, is it still murder?

Generally yes. Under transferred malice, an intention to kill one person satisfies the mental element for the death of the person actually killed. The identity of the victim is not part of what the Crown must prove.

What is transferred malice?

A rule that transfers a guilty intention from the intended victim to the actual victim. If A shoots at B intending to kill B but kills C, the intention is transferred and A can be guilty of murdering C.

Does mistaken identity reduce the charge to manslaughter?

Not by itself. The intention to kill remains, so the charge stays murder. Manslaughter arises where the mental element for murder is absent.

Where do the defences lie?

Usually in the identity of the offender, whether the intention to kill is proved, and whether a partial defence such as substantial impairment applies. Mistaken identity of the victim is rarely a defence.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 10 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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