This article was written by Fernanda Dahlstrom - Content Editor - Brisbane
Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.
Murder (NSW)
Murder is one of the most serious criminal offences in New South Wales. It shares a close relationship to the offence of manslaughter. The difference between murder and manslaughter is that murder involves the killing of another person where the accused intended to kill or seriously injure the victim. Manslaughter is the unintended killing of a person as the result of an assault where serious harm was not intended or foreseen.
The maximum penalty for murder in New South Wales is imprisonment for life. However, lesser penalties can be imposed for murder.
Legislation
The offence of murder is contained in section 18 of of the Crimes Act 1900. The section states that murder occurs when an act or omission of the accused is done with reckless indifference to human life or with the intent to kill or inflict grievous bodily harm upon a person, or in an attempt to commit, or during or immediately after the commission, of a crime punishable by imprisonment for life or for 25 years.
A homicide offence that does not amount to murder is manslaughter.
What must be proven?
To find a person guilty of murder the prosecution must prove each of the following matters beyond a reasonable doubt:
- That the accused did an act or failed to do an act;
- That the act, or failure to act, resulted in the death of another person; and
- That the accused either:
- intended to kill the person;
- intended to cause the person really serious bodily injury; or
- acted with reckless indifference to human life; that is, you foresaw that it was probable that death would result.
What acts may constitute murder?
The following acts can form the basis for a charge of murder.
- Shooting someone in the head or chest from close range;
- Being the getaway driver for two friends who take a loaded sawn-off shotguns into a bank and fatally shoot someone in the process;
- Purposefully not feeding your two-year-old child;
- Demolishing or blowing up a building without checking whether or not anyone is inside;
- Fatally attacking someone with a baseball bat because you want to seriously injure them; or
- Pushing someone off a 30-meter cliff.
Possible defences
A person charged with murder can validly defend the charge by arguing any of the following defence.
Self-defence
A person is not guilty of a criminal offence if they killed a person in self-defence. This is because the courts recognise that people have the right to defend themselves from physical attacks and threatened attacks. The defence of self-defence includes defending someone else from a physical attack.
When an accused raises the defence of self-defence, the onus is on the prosecution to prove beyond a reasonable doubt that the accused did not kill the victim in self-defence. If this cannot be proven, the accuse must be found not guilty.
For a person to be found not guilty based on a defence of self-defence, the accused must have had a reasonable belief that their actions were necessary in self-defence. What it is reasonable to do in self-defence depends on the nature and extent of the threat faced.
Extreme provocation
Extreme provocation is a partial defence to murder. This means that if proven, it reduces the verdict of murder to the alternative verdict of manslaughter.
A person can argue extreme provocation as a partial defence to murder if:
- they acted in response to the victim’s conduct;
- the victim’s conduct was a serious indictable offence;
- the victim’s conduct caused the accused to lose self-control;
- the victim’s conduct was such that it could have caused an ordinary person to lose self-cotnrol to the point of intended to kill or cause serious harm to the victim.
A non-violent sexual advance is not extreme provocation.
Lawful excuse
Section 18 of the Crimes Act provides that a person is not guilty of murder if they had a lawful cause or excuse for their actions. An example of this may be where a surgeon carries out a surgical procedure that involves a serious injury (such as an amputation) and the patient dies.
Misfortune
Section 18 of the Crimes Act provides that a person is not guilty of murder if they kill a person by misfortune only.
Jurisdiction
Murder is a strictly indictable offence and must be finalised in the Supreme Court.
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