Murder (Australian law)

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In Australia, murder, like most criminal law, is defined by State legislation. In any jurisdiction within Australia, the maximum penalty for murder is life imprisonment; this is the mandatory penalty in Queensland, South Australia and the Northern Territory.

South Australia[edit]

In South Australia, the Criminal Law Consolidation Act[1] states:

"Any person who commits murder shall be guilty of an offence and shall be imprisoned for life."[2]

No further definition for murder can be found within the Act. 'Life' is also poorly defined, with section 5 of the Act stating:

'"liable to be imprisoned for life" means "liable to be imprisoned for life or any lesser term."'[3]

Instead, particulars of 'murder' and 'life' are defined by the common law.

New South Wales[edit]

In the New South Wales (NSW) Crimes Act 1900 as follows:[4]

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...

Under NSW State law, the maximum penalty for murder is life imprisonment,[5] with a standard non-parole period of 20 years,[6] or 25 years for the murder of a child under the age of 18.[7] Attempted murder carries a maximum penalty of life or 17 years imprisonment.[8] In order to be found guilty of murder under the New South Wales Crimes Act 1900, intent to cause grievous bodily harm or reckless indifference to human life is sufficient to secure a conviction for murder.[9] Reckless indifference to human life is characterised by the awareness of the probability (as opposed to possibility)[10][11] of the accused's act resulting in a person's death (as opposed to merely resulting in grievous bodily harm).[12] Felony murder (called constructive murder in Australian jurisdictions)[13] and murder by omission are also recognised crimes in this jurisdiction.[14]

Section 23 of Crimes Act 1900 provides for the partial defence of provocation, and can refer to actions taken by the deceased both immediately before, and prior to, the murder.[15][16] If proven by the defence where there is a charge of murder, the jury will be directed to reduce the offence to manslaughter.[15][17] If prior to or at the time of the committal proceedings an offender enters a plea of guilty to the lesser offence of manslaughter on the grounds of provocation, and it is accepted by the Crown, they are entitled to a discount on their corresponding sentence.[18]

However, this is not the case in Victoria, Tasmania or Western Australia - the Crimes Act 1958 (VIC), in Section 3B, states:

The rule of law that provocation reduces the crime of murder to manslaughter is abolished.

— [19]

In assessing guilt for murder, the intention in the precise method in which death occurred is irrelevant as long as the requisite mens rea and actus reus is satisfied.[20] The relevant actus reus for murder is where an act (or omission) has caused death.[21]

The mens rea for murder is:

  1. an intent to kill;[22]
  2. an intent to inflict grievous bodily harm;[23] or
  3. reckless indifference to human life, where the defendant foresaw the probability, as opposed to possibility, of his or her actions resulting in death.[24]

In NSW, a person can also be found guilty of murder if they kill a person during or immediately after the commission of a crime that is punishable by imprisonment of 25 years or more.[25][26]

See also[edit]

References[edit]

  1. ^ http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/index.html
  2. ^ http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s11.html
  3. ^ http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s5.html
  4. ^ Crimes Act 1900 - Section 18 Murder and manslaughter defined; see "Murray v The Queen (2002) 211 CLR 193". AustLii. .
  5. ^ "CRIMES ACT 1900 - SECT 19A Punishment for murder". www.austlii.edu.au. Retrieved 2016-03-05. 
  6. ^ "CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT Table Standard non-parole periods". www.austlii.edu.au. Retrieved 2016-03-05. 
  7. ^ "CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT Table Standard non-parole periods". www.austlii.edu.au. Retrieved 2016-03-05. 
  8. ^ Crimes Act 1900 s 18(1)(a)
  9. ^ Ibid.
  10. ^ R v Crabbe (1985) 156 CLR 464 AustLii; see also Boughey v R (1986) 161 CLR 10 AustLii
  11. ^ Murray(2002)211CLR193
  12. ^ Royall v R (1991) 172 CLR 378 AustLii; see also Campbell v R [2014] NSWCCA 175 AustLii
  13. ^ s 18 Crimes Act 1900 (NSW) [1]; see also Ryan v R (1967) 121 CLR 205 Austlii; see also R v Munro (1981) 4 A Crim R 67 AustLII; also Mraz v. The Queen (1955) 93 CLR 493 [2]
  14. ^ Taktak (1988) 14 NSWLR 226; see also Stone and Dobinson [1977] 1 QB 354; see also Burns (2012) 246 CLR 334 AustLII; see also R v Styman; R v Taber [2004] NSWCCA 245 [3]; see also R v BW & SW (No. 1) [2009] NSWSC 529 AustLii
  15. ^ a b Crimes Act 1900 NSW s 23 [4].
  16. ^ See also "Davis v R" (1998) 100 Crim R 573. See also Edwards v R [1973] AC 648
  17. ^ See also Stingel v R (1990) 171 CLR 312 Austlii; Singh v R [2012] NSWSC 637 (7 June 2012) Austlii; R v Fahda [2013][5]; see also Moffa v R (1977) 138 CLR 601 Austlii
  18. ^ R v Bryan Steven Johnson [2003] NSWCCA 129 (22 May 2003)[6]; see also R v Won [2012] [7]; R v Sparks; R v D Stracey; R v P Stracey [2010] [8]
  19. ^ Crimes Act 1958 - Section 3B Provocation no longer a partial defence to murder
  20. ^ Royall v R [1991] HCA 27 at [70.
  21. ^ Crimes Act 1900 NSW s 18
  22. ^ Crimes Act 1900 (ACT) s 12(1)(a), Criminal Code (NT) s 156, Crimes Act 1900 (NSW) s 18(1)(a), Criminal Code (Qld) s 302(1), Criminal Code (Tas) s 157(1)(a), Criminal Code (WA) s 279, South Australia and Victoria do not have statutory definitions of ‘murder’ but in these jurisdictions the common law applies.
  23. ^ R v Crabbe (1985) 156 CLR 464 AustLii; see also Boughey v R (1986) 161 CLR 10 AustLii
  24. ^ Royall v R (1991) 172 CLR 378 AustLii; see also R v Cittadini [2009] NSWCCA 302 Austlii
  25. ^ Crimes Act 1900 (NSW) s 18 AustLii; see also Ryan v R (1967) 121 CLR 205 AustLii
  26. ^ See, eg, Ryan [1967] ALR 577, [601] (Windeyer J); Wilson (1992) 174 CLR 313 [318], [323]-[328], [332]-[335] (Mason CJ, Toohey, Gaudron, and McHugh JJ); Hudd [2013] NSWCCA 57.