Murder or Manslaughter
What is
Murder or Manslaughter
In New South Wales, murder and manslaughter are both types of homicide offences, which involve the unlawful killing of another person. However, they differ in intent, culpability, and maximum penalties. These offences are governed by the Crimes Act 1900 (NSW).
Murder – Section 18(1)(a) of the Crimes Act 1900 (NSW)
Murder is the unlawful killing of another person with intent. To prove murder, the prosecution must establish beyond reasonable doubt that the accused:
Caused the death of another person, and
Did so with one of the following states of mind:
Intent to kill, or
Intent to inflict grievous bodily harm, or
Reckless indifference to human life.
Manslaughter – Section 18(1)(b) of the Crimes Act 1900 (NSW)
Manslaughter is an unlawful killing without the intent required for murder. It is considered less culpable but still a serious criminal offence. There are three main types of manslaughter:
Voluntary Manslaughter:
The accused had intent to kill or cause serious harm but there were mitigating factors, such as provocation or substantial impairment by abnormality of the mind.
Involuntary Manslaughter by Unlawful and Dangerous Act:
The accused committed an unlawful act that was dangerous and unintentionally caused death.
Involuntary Manslaughter by Criminal Negligence:
The accused owed a duty of care and grossly breached that duty, leading to someone’s death.
The Penalties of
Murder or Manslaughter
Murder and manslaughter are among the most serious criminal offences, and their penalties reflect the gravity of unlawfully causing another person’s death. The penalties involve the following:
Murder – Section 19A of the Crimes Act 1900 (NSW)
Maximum Penalty:
Life imprisonment
Standard Non-Parole Period:
20 years (general murder)
25 years (if the victim was a police officer acting in the course of duty)
Life imprisonment means the offender can be imprisoned for the remainder of their natural life, although the court may set a non-parole period (a minimum term before they can be considered for release). Courts consider aggravating and mitigating factors such as planning, motive, brutality, vulnerability of the victim, and any prior criminal history.
Manslaughter – Section 24 of the Crimes Act 1900 (NSW)
Maximum Penalty:
25 years imprisonment
Unlike murder, there is no standard non-parole period set in legislation for manslaughter. The penalty will depend on the type (voluntary or involuntary), circumstances, and level of negligence or recklessness. The sentence may be significantly lower than the maximum if there are strong mitigating factors (e.g. remorse, cooperation, low risk of reoffending, provocation, or diminished capacity).
Sentencing for both offences is handled by the NSW Supreme Court and is influenced by multiple factors including the circumstances of the offence, the offender’s background, and whether they plead guilty or go to trial. A guilty plea may result in a significant reduction in the sentence.
The Possible
Defence Strategies
Defending a charge of murder or manslaughter requires careful legal strategy, as these are among the most serious offences. Defence strategies typically focus on negating key elements of the offence, or presenting a legal defence that justifies, excuses, or mitigates the accused’s actions.
Challenging the Prosecution Case (Factual Defence)
Disputing intent (for murder): Arguing that the accused did not intend to kill or cause grievous bodily harm, or was not recklessly indifferent to life.
Lack of causation: Claiming the accused’s actions did not directly cause the death.
Disputing identity: Arguing that the accused was not the person who committed the act.
Reasonable doubt: Undermining the prosecution’s evidence to prevent them from proving the offence beyond reasonable doubt.
Self-Defence
A complete defence to both murder and manslaughter.
Applies where the accused believed it was necessary to use force to protect themselves or another from harm, and the force used was reasonable in the circumstances.
If accepted, results in acquittal.
Mental Illness Defence
If the accused was suffering from a mental illness at the time of the offence and did not understand the nature or wrongness of their actions, they may be found not guilty by reason of mental illness.
The person is diverted to a mental health facility rather than prison.
Substantial Impairment
A partial defence to murder that may reduce the charge to manslaughter.
Applies when the accused was suffering from a mental health impairment or cognitive impairment that substantially impaired their capacity to understand events, make judgments, or control themselves.
Provocation
A partial defence that may reduce murder to manslaughter.
Requires that:
1. The accused lost self-control in response to extreme provocation, and
2. An ordinary person could have acted similarly in the same situation.
Accident or Lack of Negligence
For involuntary manslaughter, the defence may argue that:
The accused did not owe a duty of care, or
There was no gross negligence or criminal act that caused the death.
In unlawful act manslaughter, the defence may challenge whether the act was dangerous or unlawful.
Duress or Necessity
The accused acted under threat of death or serious harm, or in a situation of extreme emergency where breaking the law was the only reasonable option.
When facing a charge as serious as murder or manslaughter, having the right legal team can make all the difference. At Sydney Defenders, we understand the gravity of these offences and the profound impact they have on the individual’s livelihood. Our firm offers access to an exclusive network of seasoned criminal defence barristers who are regularly briefed in complex matters held in the Supreme Court. Supported by a robust and dedicated legal team, we work collaboratively to analyse the prosecution’s case, identify weaknesses, and build a strong, evidence-based defence strategy. Sydney Defenders is committed to providing realistic and sound legal advice to put clients we represent in the best possible position before the court.