21 Sep 2016The Australian laws relating to murder, attempted murder and manslaughter are all state-based. However, in practice there is not a great deal of difference between the laws which cover these crimes in the different Australian territories and states.
The definitions below are the legal definitions in New South Wales.
What is murder?
The offence of murder is defined in the Crimes Act 1900 (NSW), and by common law principles which have been articulated by the courts.
Section 18 of the Crimes Act defines murder as any unlawful act or omission which causes the death of another person. In terms of the defendant’s state of mind, the act/s or omission/s causing the death must have been committed:
- With reckless indifference to human life; or
- With intent to kill or inflict grievous bodily harm; or
- In an attempt to commit, or during or immediately after commission by the defendant or an accomplice of, a crime punishable by imprisonment for life, or 25 years.
Section 19A of the Crimes Act dictates that the maximum penalty for murder is imprisonment for life.
Attempted murder is any act done by the defendant, towards the commission of a murder, which goes beyond mere preparation, and could not reasonably be regarded as having any purpose other than commission of that crime. To be guilty of attempted murder, the defendant must have intended to carry out any/all acts necessary to result in him/her committing a murder, even if those acts did not eventuate.
What is manslaughter?
Like murder, the offence of manslaughter is defined in the Crimes Act 1900 (NSW), and by common law principles which have been articulated by the courts. Section 18 of Crimes Act defines manslaughter as any punishable homicide which does not amount to murder.
As to the meaning of “punishable homicide”, section 18 states that a person is not to be punished for causing the death of another person:
- “By misfortune only”; or
- By any act or omission which was not malicious, or for which the person had lawful cause or excuse.
Section 24 of the Crimes Act dictates that the maximum penalty for manslaughter is imprisonment for 25 years.
Voluntary and involuntary manslaughter under common law
The common law recognises two distinct categories of manslaughter: voluntary manslaughter and involuntary manslaughter.
Voluntary manslaughter occurs when all the elements of the offence of murder are established. However, the acts or omissions causing the death occurred because of:
- Extreme provocation by the deceased person, being acts or omissions amounting to a serious indictable offence and causing the defendant to lose control; or
- Diminished responsibility, that is, an abnormality of mind which substantially impaired the defendant’s capacity to understand his/her acts/omissions.
Involuntary manslaughter may occur in one of two ways:
- Killing by an unlawful and dangerous act, that is, any intentional act by a defendant which is unlawful and dangerous and carries an appreciable risk of serious injury, and which causes the death of another person.
- Killing by criminal negligence, that is, any act or omission by a defendant, which causes or accelerates the death of another person, in circumstances where the defendant was under a duty to care for the deceased person, and the acts/omissions amount to gross negligence (or perhaps recklessness) and a failure to perform the duty.
Note that there is no such thing as “attempted manslaughter”.
When no-one is charged over an accidental death
Another category of death which occurs outside the sphere of death from natural causes is when someone dies by accident and no-one is charged in relation to this event. In these circumstances the death is recorded by the coroner and on death certificates as a “death by misadventure” (when the person who died voluntarily took a risk) or an “accident” (when the person who died did not take a deliberate risk).
Australia’s system of criminal charges for causing the death of another person or attempting to do so is not so different from the USA, despite what we see on television cop shows from that country. In the USA, some states label their offences “first degree murder”, “second degree murder” etc. However, these offences are roughly equivalent to our murder and manslaughter offences and require the prosecution to prove similar things.
Unlike the offence of murder in NSW, some jurisdictions in the USA require a degree of planning or premeditation before a person is guilty of first degree murder. Other states recognise several different categories of intentional killing all as first degree murder.
For more information please see Someone vanishes – how long before they can be declared dead?
