Murder and Manslaughter

Being accused of a major crime like murder or manslaughter can be nerve-wracking.

About Homicide

Homicide refers to murder.

Two types of wrongful homicide are recognised by law:

1. Murder is the intentional death of another person.

2. Manslaughter: unintentional killing.

S18 murder

Unlawful and purposeful killing is murder.

It's the worst crime and carries a life sentence.

Your Choices

NOT GUILTY

The prosecution must prove two elements to convict of murder:

• You meant to kill or maim the victim.
• Your acts or omissions killed someone.

If you don't trust these two aspects, plead not guilty.

Our seasoned defence team can then help you defend your innocence.

In many circumstances, we can get charges dropped early by discovering flaws in the prosecution's case, such as insufficient evidence that your conduct caused the other person's death.

We regularly avoid clients the stress and expense of a Supreme Court trial by trying to have charges withdrawn or lowered.

If your case goes to court, you'll be represented by one of our experienced criminal lawyers, who have won murder cases.

We can also suggest defences that could explain your behaviour or minimise its severity, such as:

• Self-defence
• Psychological Provocation The charge will be reduced from murder to manslaughter.
• Murder is a serious crime, hence the Supreme Court handles it.

If you plead "not guilty," a criminal trial will decide your guilt. Long, difficult trials are common.

Guilty Plea

If you don't want to fight the charges, one of our senior defence lawyers can help you plead guilty.

If you plead guilty from the start, you'll go straight to sentence, when the justice chooses your penalty.

Often, admitting guilty early will result in a lower sentence since you have taken responsibility.

Before accepting a plea, see one of our criminal law experts; you may be able to defend the allegations in court.

Being charged with murder might be unpleasant, so you'll want to know your penalties.

Life in prison is the highest penalty for murder, but it's normally reserved for the worst cases.

Depending on the facts and circumstances of your case, the sentence you receive may be significantly lower. Certain variables may raise the seriousness of the offence, resulting in harsher penalties, while other aspects may diminish the seriousness, resulting in lighter penalties.

More Information on Manslaughter

When you’re facing criminal charges such as manslaughter, you will likely want to find out as much information as possible about the offence and how it could impact your life.

We have provided some additional information below which may assist you.

What are the four different types of manslaughter?

As discussed above, there are four different categories of manslaughter. In order to be found guilty of manslaughter, the prosecution must prove that the other person’s death came about due to one of these four circumstances:

1. Manslaughter by criminal negligence:

Manslaughter by criminal negligence arises where you owed the deceased a ‘duty of care,’ and a reasonable person in your position would have realised that your actions were negligent and posed a high risk of death or serious injury.

To be found guilty of manslaughter by criminal negligence, the prosecution must prove beyond a reasonable doubt that:

(i) You had a duty of care to the accused:

The prosecution must show that you owed a duty of care to the other person. A duty of care is a legal obligation that you take reasonable care of another person in certain circumstances.

The law recognises a duty of care in four situations:

• Where the law imposes a duty of care upon you – for example, when you drive you have a legal duty of care to other road users not to drive negligently;
• Where your relationship with the other person implies a duty of care – for example, a teacher has a duty of care towards her students;
• Where a duty of care arises due to a contractual relationship – for example, an employer has a duty of care towards their employees;
• Where you assume a duty of care through your conduct. 

The judge will decide whether you owed a duty of care to the deceased person based on the facts and circumstances of your case.

(ii) You acted negligently and in breach of that duty of care:

The prosecution must show that your actions fell short of the duty of care that a ‘reasonable person’ would have exercised in the same circumstances. It won’t matter whether or not you believed that you were acting outside your duty of care.

The court will consider your actions from the perspective of an ordinary member of the public. If it is found that an ordinary member of the community would have acted differently in the same circumstances, you will be found to have acted negligently in breach of your duty of care.

A ‘reasonable person’ is someone of the same age and gender as you, with the same level of education and training. A reasonable person is someone who is not affected by drugs or alcohol.

(iii) Your negligent actions contributed to the other person’s death:

The prosecution must prove beyond a reasonable doubt that your actions were a ‘substantial cause’ of the other person’s death.

Alternatively, they may prove that your actions accelerated the deceased’s death.

(iv) Your actions demanded criminal punishment:

The prosecution must prove that you deserve to be punished by the law because:

• You breached the standard of care that a reasonable person would have exercised;
• You knew or should have known that your actions were highly likely to result in serious injury or death;
• Your negligence was so severe that it warrants legal punishment.

2. Manslaughter by unlawful and dangerous act:

Manslaughter by an unlawful and dangerous act arises where you cause another person’s death by acting in a way that you knew, or should have known, could result in serious injury.

To be found guilty of manslaughter by unlawful and dangerous act, the prosecution must prove that:

(i) Your actions were unlawful and resulted in the other person’s death:

The prosecution must prove that your actions were intentional and ‘substantially contributed’ to the other person’s death. Your actions must have also been unlawful – i.e. it must be shown that you were not acting in self-defence or for some other lawful purpose.

(ii) A reasonable person in your position would have realised that your actions could result in serious injury:

The prosecution must show that your actions were dangerous. Your actions will be found to be ‘dangerous’ where a reasonable person in your position would have realised that your actions had a probability of inflicting serious injury upon another person.

It will not matter whether or not you believed that your actions were dangerous.

A ‘reasonable person’ is someone of the same age and gender as you, with the same level of education and training. A reasonable person is someone who is not affected by drugs or alcohol.

3. Manslaughter by Excessive Self-Defence

In situations where you were acting to protect yourself, your property or another person, you may be able to justify your actions on the basis of self-defence. However, to be found ‘not guilty’ on the basis of self-defence, you must prove that your actions were reasonable in the circumstances.

Where you act unreasonably in exercising self-defence and your actions result in the death of the other person, you may be charged with manslaughter by excessive self-defence.

To be found guilty of manslaughter by excessive self-defence, it is necessary for the prosecution to prove three things beyond a reasonable doubt:

(i) You used force which resulted in the intentional or reckless killing of the other person:

It must be shown that your actions ‘substantially contributed’ to the other person’s death. Your actions may be shown to be intentional or reckless – i.e. that you knew, or should have known that they would result in the other person’s death.

(ii) Your were aware that your conduct was excessive and unreasonable:

The defence of self-defence is premised on the understanding that you honestly believed that your actions were reasonable in the circumstances.

The court will look at the situation from your perspective to determine whether you believed that your actions were reasonable at the time of the offence.

However, where it is shown that you knew that your actions were excessive or unreasonable, you will not be able to justify your actions on the basis of self-defence. Where your actions result in the death of the other person, you may be charged with manslaughter.

(iii) You acted to defend yourself or another person:

You must be able to prove that you were trying to protect yourself or someone else from another person. For example, where someone is attempting to hurt another person and you intervene to protect that person by assaulting the attacker.

4. Manslaughter by omission

Manslaughter by omission refers to situations where you had an obligation to perform some action, and you failed to do so. For example, where you are a parent and you fail to properly take care of your child, who dies as a result of malnourishment.

To be found guilty of manslaughter by omission, the prosecution must prove beyond a reasonable doubt that you:

(i) Had a legal obligation to care for someone:

The prosecution must show that you owed a duty of care to the other person. A duty of care is a legal obligation that you take reasonable care of another person in certain circumstances.

For example, a parent or teacher has a duty of care to look after his or her children.

(ii) Omitted to do some action in line with your duty of care:

An omission is a failure to perform some act expected of a reasonable person with a duty of care – for example, a parent failing to seek medical assistance after his or her child is seriously injured.

The prosecution must show that your omission fell short of the duty of care that a ‘reasonable person’ would have exercised in the same circumstances. It won’t matter whether or not you believed that you were acting outside your duty of care.

The court will consider your actions from the perspective of an ordinary member of the public. If it is found that an ordinary member of the community would have acted differently in the same circumstances, you will be found to have acted negligently in breach of your duty of care.

A ‘reasonable person’ is someone of the same age and gender as you, with the same level of education and training. A reasonable person is someone who is not affected by drugs or alcohol.

(iii) Your omission substantially contributed to their death:

The prosecution must prove beyond a reasonable doubt that your omission was a ‘substantial cause’ of the other person’s death.

What penalties could I face?

If you choose to plead ‘guilty’ from the outset to the charge, you will proceed straight to sentencing, which is where the judge determines the type and length of the penalty that you will receive.

The maximum penalty for manslaughter is 25 years imprisonment, however this is usually reserved only for the most serious offences.

Often, the sentence received will be much lower than this depending on the facts and circumstances of your case.

Statistics show that the average term of imprisonment for persons found guilty of manslaughter is 7 years in total. However, the average non-parole period is 4.5 years – meaning that the average person found guilty of manslaughter spends 4.5 years in gaol.

Certain factors may increase the seriousness of the offence and attract a harsher penalty, while other factors may decrease the seriousness of the offence. The judge will award the appropriate penalty after looking at all the facts and circumstances of your case.