Murder is probably the most serious offence occurring in Australia and is defined as the unlawful and intentional killing of another human being by a person of sound mind, who has no legal reason to do so.
Degrees of blameworthiness separate murder and manslaughter, and manslaughter itself has two degrees of blameworthiness – voluntary manslaughter and involuntary manslaughter.
Murder can result in a penalty of life imprisonment, and manslaughter can result in 20 years imprisonment, so it is vitally important that you seek legal help if you have been accused of murder or manslaughter.
In a case of murder (except for when the murder is constructive murder), the prosecution must prove that the accused had full intention to kill, an intention to inflict grievous (and serious) bodily harm, or a reckless indifference to human life. The accused must have foreseen that his or her actions, or failure to act, amounted to the death of the victim.
An intentional killing that is accompanied by mitigating factors describes voluntary manslaughter. The mitigating factors are generally lack of premeditation and provocation, which causes anger or rage; however, there are other factors that may apply. An example of this would be a person who is provoked in an argument, to the extent that they become enraged and immediately lash out at the victim, killing them in the heat of the moment.
Involuntary manslaughter refers to an unlawful killing without intent – usually, where death is caused by negligence or recklessness, by committing an unlawful and dangerous act. An example of this would be a passenger in a car who is killed due to the driver’s reckless driving behaviour.
Prosecution must prove that death was caused by an unlawful act or omission, an act of neglect, or a departure from the standard of care in which any reasonable person could have seen that the risk in doing so would likely cause death or serious injury.
Constructive murder is also known as felony murder. It refers to a death caused while a person is committing, or trying to commit, another serious crime (one punishable by imprisonment for 25 years or more), such as aggravated armed robbery. In constructive murder, no consideration is given for the accused’s state of mind when they caused the death, so it is irrelevant whether or not the accused intended to cause the death or not.