Homicide & Manslaughter Penalties & Defences

Proctor & Associates will advise you on the best course of action in order to obtain the best possible result for you. Should you find yourself charged with any of the following murder or manslaughter related offences, or any other offences, contact us immediately and organise an appointment.

Murder

S.18 of the Crimes Act (NSW) defines Murder and states:
(1)
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, 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 for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.

(2)
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

When analysing s.18(1)(a) it can be seen that murder requires any one of three elements:
(a) The act or omission is done with reckless indifference to human life;
(b) The act or omission is done with intent to kill or inflict grievous bodily harm
(c) The death occurring during the commission of an offence which is punishable for life or 25 years.

Defences: There are a number of defences to a charge of murder, such as Self Defence (s.418 Crimes Act), Provocation (s.23 Crimes Act), substantial impairment by abnormality of mind (s.23A Crimes Act) and in a limited way, Intoxication (see s.428 Crimes Act). Self defence is a complete defence, however the other defences may only reduce a murder charge to a finding of Manslaughter.

Punishment for murder: Murder carries a maximum penalty of life imprisonment. It has a standard non-parole period of 25 years when involving the death of certain classes of people, such as Police, Judicial officers, corrective services officers etc and also a child under the age of 18 years. In all other cases it is 20 years.

Manslaughter

Section 18 does not define manslaughter. We therefore must look to the Common Law for guidance. The High Court decision of R v Wilson (1992) 174 CLR 313 gives much assistance as to elements of manslaughter.

There are two forms of Manslaughter:

  • Voluntary Manslaughter
  • Involuntary Manslaughter

Voluntary Manslaughter is where the act is a voluntary act sufficient to constitute murder, but a defence to murder is raised such as excessive self defence, intoxication, substantial abnormality of the mind or provocation which if accepted reduces the persons culpability to Manslaughter.

Involuntary Manslaughter is where there is no intention to cause the death of the victim, but there is conduct by the accused which fits into one of the following categories:
– Manslaughter by an unlawful and dangerous act or
– Manslaughter by criminal negligence.

Manslaughter by unlawful and dangerous act must carry with it an appreciable risk of serious injury. The act must be both unlawful and dangerous. The mens rea required to be establshed, relates to the unlawful and dangerous act. Such act must be “willed” and not “accidental”.

Honest and reasonable mistaken belief is not a defence to such offence.

Manslaughter by criminal negligence occurs when a person causes the death of another through an act or omission that carries with it a high risk that death or grievous bodily harm (a really serious injury) would follow. The standard of care exercised by such accused, falls far short of that which a reasonable person would be expected to exercise.

Proctor & Associates will advise you on the best course of action in order to obtain the best possible result for you. Should you find yourself charged with any of these offences, or other any offences, contact us immediately and organise an appointment.

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