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In Australia, murder is a criminal offence where a person, by a voluntary act or omission, causes the death of another person with either intent to kill, intent to inflict grievous bodily harm, or with reckless indifference to human life.[1] It may also arise in circumstances where the accused was committing, or assisting in the commission, of a different serious crime that results in a person's death. It is usually punished by life imprisonment. Other punishable killings fall under the law of manslaughter.
Australia is a federal nation and the law of murder is mostly regulated under the law of its constituent states and territories. There is also federal murder offence available in limited circumstances.[2]
Definition
editIn most states and territories, the definition of murder is codified in legislation. In South Australia, the offence is not defined at statute and is left to the common law.
Physical elements (or actus reus)
editThe act or omission causing death must be voluntary.
Act or omission
editMurder is usually made out by a voluntary act brought about by the will of the accused.
Murder can also be made out on an omission, a choice by the accused not do do something the law requires them to do. Examples of duties giving rise include a duty to feed and seek care for one's children, and a duty to rescue a person where the accused's actions secluded the person from seeking assistance. For murder to be made out this way, the person must have acted in a way that was "so far short" of the care a reasonable person would exercise in the circumstances.
Causation of death
editThe accused's actions must have caused the death of the deceased. In cases where the causation of death seems straightforward, the jury is entitled to use their common sense.[3][4]
This element also requires that the deceased was alive when the accused acted.
Fault elements (or mens rea)
editIntent to kill or inflict grievous bodily harm
editIt does not need to be shown that a person intended to kill or inflict harm upon a particular person. It also does not need to be shown that they intended to kill or inflict a person in a particular way.[3]
Reckless indifference to human life
editIn many, but not all, Australian jurisdictions, murder can be made out if it is shown that they were recklessly indifferent to human life when they acted.
A person has reckless indifference to human life if they knew that it was probable that their actions would cause the victim to suffer grievous bodily harm or death.[5]
The text of the New South Wales Crimes Act limits reckless indifference to knowledge of the probability of death, and not grievous bodily harm, in that state.
Defences
editProvocation
editProvocation, or extreme provocation in New South Wales, is made out where the deceased is alleged to have engaged in conduct which caused the accused to lose self-control and the conduct would have caused an ordinary person to lose control to the point where they could form the intent to kill. If the defence successfully raises it, the accused's charge is reduced to manslaughter.
The defence has been abolished in most states and has been restricted in New South Wales, Queensland, the Australian Capital Territory, and the Northern Territory.
In the Green and Lindsay cases, the High Court recognised non-violent homosexual advances as potentially provocative in decisions criticised by scholars as effectively creating a "homosexual advance defence".[6][7] In the states where the defence is still available, parliament has removed non-violent sexual advances from the scope of the defence. In New South Wales, the provoking conduct must have constituted a serious criminal offence.
Self-defence and excessive self-defence
editWhere the accused believed, on reasonable grounds, that killing the deceased was necessary to defend their life or someone else's life
If the belief was "unreasonable", the defence becomes one of "excessive self-defence" which is only a partial defence that will decrease the charge to manslaughter if made out.
References
edit- ^ For e.g., Crimes Act 1900 (NSW) s 18
- ^ Criminal Code 1995 (Cth) s 115.1
- ^ a b Royall v The Queen [1991] HCA 27, (1991) 172 CLR 378
- ^ Also see Campbell v The Queen [1980] WASC 300, [1981] WAR 286, (1980) 2 A Crim R 157, Western Australia Court of Criminal Appeal
- ^ R v Crabbe [1985] HCA 22, (1985) 156 CLR 464
- ^ Green v The Queen [1997] HCA 50, (1997) 191 CLR 334; Lindsay v The Queen [2015] HCA 16, (2015) 255 CLR 272
- ^ Blore, Ken (2012). "The Homosexual Advance Defence and the Campaign to Abolish it in Queensland: The Activist's Dilemma and the Politician's Paradox". QUT Law Review. 12 (2): 38–65.