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MURDER AND MANSLAUGHTER

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Have you been charged with murder or manslaughter?

The unlawful killing of anther human being is a serious criminal offence. It may result in criminal charges and eventually a criminal conviction. Without question, you need legal advice from a criminal law expert. Contact our law firm for a free initial consultation and possible representation to ensure the best possible outcome for your matter.

In New South Wales, the offences of murder and manslaughter are dealt with under the Crimes Act 1900 (NSW) and the common law. Put simply, the common law is law made by judges over time through their interpretation of legislation, the facts of the case and previous decisions made about the same or similar matters (precedent).

Murder and manslaughter are prosecuted by the Director of Public Prosecutions (DPP). In Australia, a person is innocent until proven guilty. The prosecution must prove the elements of the offence beyond a reasonable doubt. If you plead guilty at the earliest possible opportunity, you may be entitled to a 25% reduction in your sentence.

The police will often charge you with both murder and manslaughter. This is stacking charges or casting a net in the event the court considers there is not enough evidence to convict of murder but can convict of manslaughter. If the police do not stack charges, the court can acquit you of murder but can still convict you of manslaughter if it has been proven by the DPP.

Murder as defined under the crimes act

The Crimes Act defines murder as:

  • An act, or omission, causing the death charged, was done or omitted with reckless indifference to human life, or 
  • With intent to kill or inflict grievous bodily harm upon some person, or 
  • Done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or 25 years.

Reckless indifference to human life means doing something even when you foresee or realise that it would probably cause death. The common law treats this behaviour the same as someone who intentionally sets out to cause the death of the victim.

The maximum penalty for this offence is life imprisonment for the term of the person’s natural life. The standard non-parole period for this offence is 20 years unless a term of life imprisonment is administered. In that case, no non-parole period can be issued.

In the event the victim is a police officer who was killed in the execution of their duties or for being a police officer, life imprisonment is a mandatory sentence. The non-parole period for this offence is 25 years.

Constructive murder (felony murder)

Constructive murder, also known as felony murder, is committed during or immediately after the commission or attempted commission of a serious crime. A serious crime is one that is punishable by 25 years imprisonment.

Intention to commit murder or grievous bodily harm is NOT required. The prosecution has to prove:

  • There was an act or omission that resulted in the death of another person
  • The act or omission was voluntary
  • The act or omission happened during or immediately after the commission or attempted commission of a serious offence

Attempted murder

There are four categories of attempted murder. The standard non-parole period for this offence is 10 years.

  • Acts done with intent to commit murder

If you administer to, or causes to be taken by, any person any poison, or other destructive thing, or by any means wounds, or causes any grievous bodily harm to any person, with intent in any such case to commit murder, you are liable to 25 years imprisonment.

  • Acts done to property with intent to commit murder

If you set fire to any vessel, or chattel therein, or any part of her tackle apparel or furniture, or casts away or destroys any vessel, or by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or places, or throws, any matter or thing upon or across a railway, or removes, or displaces, any sleeper or thing belonging to a railway, with intent in any such case to commit murder, you are liable to 25 years imprisonment. 

A chattel is an object e.g. bed, table, paperwork, vase, etc.

  • Certain other attempts to murder

If you attempt to administer to, or cause to be taken by, any person any poison, or other destructive thing, or shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, you are liable for 25 years imprisonment. 

  • Attempts to murder by other means

If you, by any other means, attempts to commit murder you are liable to 25 years imprisonment.

Conspiracy to murder

If you conspire and agree to murder, any person, whether a subject of her Majesty or not, and whether within the Queen’s dominions or not, or solicits, engages, persuades or endeavours to persuade, or proposes to, any person to commit any such murder, you are guilty of an offence.

That means, if you conspire and agree to murder anyone, regardless of if they are a citizen of the country or someone living overseas, you are guilty of an offence.

The maximum penalty for this offence is 25 years imprisonment. The standard non-parole period for this offence is 10 years.

Murder of a child by its mother

There are three criminal offences relating to the murder of a child by its mother.

  • A child is considered to have been born alive if it has breathed and has been wholly born into the world regardless of whether it has its own circulation or not.
  • If you are a woman who gave birth to a child and are accused of contributing to that child’s death, whether during delivery, or after its birth or wilfully caused any violence, the mark of which is found on the child you are guilty of an offence.

The maximum penalty for this offence is 10 years imprisonment.

  • If you conceal the birth of a child after its death before, during or after birth by disposing of its body, you are guilty of an offence.

The maximum penalty for this offence is 2 years imprisonment.

It is a defence if the child dies after its birth, but before 28 weeks gestation. 

  • If you are a woman who by wilful act or omission causes the death of her child, under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child you are guilty of infanticide. 

Infanticide is dealt with the same as manslaughter. The maximum penalty for this offence is 25 years imprisonment.

Alternative verdicts for this offence include manslaughter, not guilty on the ground of insanity and concealment of birth. The standard non-parole period for the murder of a child by its mother is 25 years.

Assault causing death

You are guilty of this offence if:

  • You assault another person by intentionally hitting another person with any part of your body or with an object held by you, and
  • The assault is not authorised or excused by law, and
  • The assault causes the death of the other person

The maximum penalty for this offence is 20 years imprisonment

If you are over the age of 18 and intoxicated at the time of the offence, the maximum penalty is 25 years imprisonment.

It does not matter if the death was caused as a result of the injuries received as a direct result of the assault or from hitting the ground or another object.

It is a defence if:

  • The intoxication was not self-induced
  • You had a significant cognitive impairment at the time the assault took place.

Supply of drugs causing death

If you:

  • Supply a prohibited drug to another person for financial or material gain, and
  • The drug is self-administered by another person, and 
  • The self-administration of the drug causes or substantially causes the death of that other person,

you are guilty of an offence.

The maximum penalty for this offence is 20 years imprisonment.

Defences to murder

Extreme provocation: 

Extreme provocation is a partial defence to a charge of murder. Extreme provocation occurs when:

  • The act of the accused that causes death was in response to conduct of the deceased against towards or affecting the accused, and
  • The conduct of the deceased was a serious indictable offence, and
  • The conduct of the deceased caused the accused to loose self-control, and
  • The conduct of the deceased could have caused an ordinary person to loose self-control to the extent of intending to kill or cause grievous bodily harm on the deceased. 
  • The act of the deceased does not need to have occurred immediately before the act causing death.

Substantial impairment by abnormality of mind:

  • At the time of the act or omission causing death, the person’s capacity to understand events, or to judge whether their actions are right or wrong, or to control himself/herself, was substantially impaired by abnormality of the mind arising from an underlying condition, and
  • The impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
  • Impairment by abnormality of mind does not apply where the abnormality of mind was caused by self-induced intoxication.
  • It is up to you to prove impairment by abnormality of mind. This will require specialist medical reports to support your defence.

Self-defence:

A defence of self-defence may be available if you believe your conduct is necessary:

  • To defend yourself or another person, or
  • To prevent or terminate the unlawful deprivation of your liberty or the liberty of another person, or
  • If the use of force is excessive and results in death, it will result in a charge of manslaughter not murder.

Battered womens syndrome is not a defence to murder or manslaughter, however, it is a recognised psychological condition that results in a woman who has been the victim of sustained domestic violence. It may explain the events leading up the offence and assist during sentencing.

Manslaughter

The Crimes Act defines manslaughter as:

Every other punishable homicide not listed in the definition of murder, is manslaughter.  

The maximum penalty for this offence is 25 years imprisonment.

The common law has established two categories of manslaughter. They are voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter

Voluntary manslaughter has all the ingredients of murder, however, the culpability of the offender is taken into consideration. Provocation or substantial impairment by abnormality of mind are factors taken into consideration.

Involuntary manslaughter

Involuntary manslaughter has been further divided into two categories by the common law:

  • Manslaughter by unlawful and dangerous act
  • Manslaughter by criminal negligence

Involuntary manslaughter

Manslaughter by a unlawful and dangerous act happens when:

  •  A death is caused by a voluntary act 
  • There was an intention to commit the act that caused the death
  • The act was an unlawful act
  • The act was dangerous 

The test used by the court is whether a reasonable person in the position of the accused would have realised that the conduct exposed another person to the risk of death or serious injury. A reasonable person is a person in the position of the accused at the time the act was committed, who would have realised that the act exposed another person, whether be the deceased or not, to a risk of serious injury. The reasonable person takes on all the attributes of the accused, age, state of mind, etc, however intoxication is not included.

Manslaughter by unlawful and dangerous act

Manslaughter by an unlawful and dangerous act happens when:

  •  A death is caused by a voluntary act 
  • There was an intention to commit the act that caused the death
  • The act was an unlawful act
  • The act was dangerous 

The test used by the court is whether a reasonable person in the position of the accused would have realised that the conduct exposed another person to the risk of death or serious injury. A reasonable person is a person in the position of the accused at the time the act was committed, who would have realised that the act exposed another person, whether be the deceased or not, to a risk of serious injury. The reasonable person takes on all the attributes of the accused, age, state of mind, etc, however, intoxication is not included.

Manslaughter by criminal negligence

Manslaughter by criminal negligence happens when:

  • The act is committed by the accused consciously and voluntarily
  • There was no intention to cause or grievous bodily harm
  • A duty of care was owed by the accused
  • A great failing of standard of care which a reasonable person would have exercised and involved such a high risk of death or grievous bodily harm would follow the act.

Who owes a duty of care?

Examples of people who owe a duty include but are not limited to:

  • Parent to child
  • Teacher to student
  • Doctor to patient
  • Driver of a motor vehicle to other road users
  • Employer to employee

Court Process

Once you have been charged with murder or manslaughter, your matter will go through a number of stages in the court process.

STEP 1

Bail

Bail is the release from custody on conditions prior to your matter appearing before the court. It is unlikely bail will be granted for murder or manslaughter charges as they are the most serious criminal offences. You will need to show cause as to why you should be realised on bail e.g. age, recognised cognitive impairment, etc. If your bail application is refused, you may be eligible to appeal the decision to the Supreme Court. If your application is refused, you will be remanded in custody.

STEP 1

STEP 2

Committal Hearing

A committal hearing is the prosecutions first chance to present their case to the court. The court determines whether the prosecution has enough evidence to proceed with the matter. Committal hearings are heard in the Local Court without a jury.

STEP 2

STEP 3

Trial

The criminal trial process can be lengthy, lasting weeks or months depending on the evidence required, availability of witnesses and the courts availability. The trial is usually conducted with a jury, however, there are times when it can be conducted without a jury. It is up to the jury to determine the verdict.

STEP 3

STEP 4

Sentencing

If the jury convicts you of the charge of manslaughter or murder, the judge will determine the sentence based on the legislation, common law and facts of the case. A not guilty verdict will mean an acquittal of the matter.

STEP 4

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our solicitors for legal advice tailored to your specific legal problem. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis.It should also be noted that there may be court delays due to COVID-19.

Frequently Asked Questions.

Our lawyers cover a multitude of areas, including more serious offences. Including but not limited to:

Family Violence
Family violence is among the most common cases we encounter, with both men and women subject to institutional abuse. While it doesn’t necessarily entail sexual abuse, in many cases, it does, and sexual assault is part of the Criminal Code. We handle such cases with confidentiality and cautiousness to ensure the best possible compensation outcomes.

Children-related Issues
The children’s court is frequently confronted with issues of child protection, children’s rights, custody arrangements as a result of divorce, parental responsibilities, and more.

Because we understand how far the impacts of such situations can go in the memories of children, we work rapidly and efficiently to establish protective measures against children’s trauma and minimize time spent in a children’s court. You and your children are fully protected with us!

Drugs
We have a track record of achieving outstanding results when it comes to drug offence charges, ranging from demolishing the possibility of a criminal conviction, dropping charges through negotiations, securing “not guilty” verdicts in court trials, and more.

Our drug offences include commercial drug charges, drug importation charges, drug possession charges, and cultivating prohibited plant charges. We also work with minor possessions of prohibited drug offences, providing you with legal representation throughout the process!

Fraud

Fraud is considered one of the most scheming criminal offences, and accordingly, it is punished severely by the court system’s penal code and criminal code. As specified by Australia’s penal code, the penalties can go as high as ten years of imprisonment.

Accordingly, understanding the criminal law adequately and reaching out for professional legal advice to be your intermediary with the criminal justice system is a must. We specialize in forgery, identity crimes, tax fraud, Medicare fraud, and ID fraud.

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