Murder and Manslaughter

Murder & Manslaughter

Galbally Parker operates one of the most successful and busy private homicide defence practices in Victoria and New South Wales. Whilst the majority of homicide matters are dealt with through legal aid, Galbally Parker offers a boutique private service to those defending charges of murder, manslaughter and culpable driving, with access to the best Barristers and experts to assist in our defence of those denying charges arising from the death of another person.

For example, in 2014, we defended Phillip Bracken, who was the first person in Victoria to be acquitted of murder on the basis of Family Violence Self Defence. We regularly defend individuals charged with homicide offences in both Victoria and New South Wales and are proud of our successful record of acquittals, as well as our record for appearing in Plea Hearings and receiving low sentences for those who elect to plead guilty to such offences. Media reporting of cases that we have appeared in can be found in our Media Links page. 

 

Homicides 

Homicide matters arise when an alleged criminal act has resulted in the death of a human being. Such matters include charges of murder, manslaughter, culpable driving and dangerous driving causing death.

Homicide matters are heard usually in the Supreme Court and, sometimes, in the County Court of Victoria. They require considerable understanding of DNA and forensic procedures, police protocols and the rules of evidence.

Since 1976, Galbally Parker has acted in countless homicide matters across Australia and we have witnessed the development of the law and, in particular, the increasing reliance by law enforcement on scientific procedures, such as DNA profiling, fingerprint analysis, ballistics and blood spatter analysis.

We pride ourselves on the continuing professional development of our team, in order to keep abreast of all recent scientific and legal developments, both in Australia and overseas. It is our ability to analyse both the law and science in such cases, calling on only the very best experts from around Australia, which has maintained our reputation as being the pre-eminent criminal defence practice in Victoria.

Below we address each of the homicide offences, the provisions relating to them and the sentences:

 

Murder

Murder is a common law offence, meaning it has been developed through previous cases and not through the enactment of a piece of legislation.

Elements of Murder

A murder will be found to have been committed if the Prosecution prove beyond all reasonable doubt before a Jury that:

  1. the accused caused the victim’s death;
  2. the accused’s acts were conscious, voluntary and deliberate;
  3. that at the time the accused did the acts that caused the victim’s death, he or she intended to kill or cause really serious injury;
  4. the accused killed the victim without any lawful justification or excuse.

Sentences for Murder

The nature of murder cases can vary considerably; however, all are punishable by a maximum term of life imprisonment. In recent times, the Victorian Parliament has introduced a baseline sentence for murder, being 30 years in cases where the victim was an emergency worker and 25 years in all other cases. This means that the sentencing court must sentence the accused to a minimum of 25 or 30 years, as the case may be, as a starting point and then adjust the sentence according to the particular facts of the case and the accused’s circumstances.

Murderous Intent

A murder case may be based on an intention by the accused to kill the alleged victim or on the basis that the accused was reckless as to whether the alleged victim would die as a result of their actions: ie, that they intended to cause really serious injury but the result was that the alleged victim died. This is seen mostly in serious assault matters which result in death, even if that was not the intended outcome.

Defences to Murder

Occasionally, there is an issue as to whether the accused caused the death of the victim and, in fact, whether the victim has died at all. This kind of murder case arises where there is no body found, but the circumstantial evidence surrounding the alleged victim’s disappearance indicates that they were killed. In these circumstances, the accused may argue that the Prosecution has not proven the first limb of the offence – that the accused caused the victim’s death.

For example, Robert (‘Bob’) Galbally of our office represented John Bergamin, who was charged in 2006 with the murder of his wife, Kath Bergamin, who disappeared without a trace from her home in 2002. No body was located although she was presumed dead, due to the circumstances surrounding her disappearance. The charges against him were withdrawn. In 2008, a Coronial Inquest was held into the disappearance where Coroner White concluded that she had been killed but made no finding in relation to whom was responsible.

It is more commonly the case that the accused will concede that the victim was murdered, but denies that they were responsible. This kind of situation arises in circumstances where the killer was either not identified or the identification was flawed in some way. It also arises where the Police rely on forensics located at the crime scene to allege that the accused was responsible for the killing, but where there are no eye witnesses.

In other cases, the accused will concede that they killed the victim and that they intended to kill them or cause really serious injury, but that there was a lawful excuse, such as self-defence. It is the right of every person to defend themselves against attack or the threat of attack. What is crucial to this defence is the accused’s state of mind. Where this defence is raised, the Defence will rely on evidence that the accused believed that their actions were necessary to defend themselves. Their actions must also be a proportionate response to the perceived threat. The defence of self defence can be informed by the relationship between the accused and the alleged victim, particularly in cases where family violence is alleged. What is important to remember is that, when the defence of self defence is raised, the burden is on the Prosecution to disprove that the accused acted in self-defence. Because of the way in which our justice system works, the accused does not have to prove his or her innocence.

We represented Dominic Gatto, who was charged with and acquitted of the murder of Andrew ‘Benji’ Veniamin, who attacked Mr. Gatto in a Carlton Restaurant in 2004. He was acquitted by a Jury in the Supreme Court of Victoria in June 2005 on the basis of self defence. And, in 2016 we represented Mohammed Hamzy, who was acquitted by a Jury in the Supreme Court of New South Wales of murder on the basis of self-defence. He was convicted of the alternative charge of manslaughter on the basis of excessive self-defence and he currently has an appeal pending in the Court of Criminal Appeal of New South Wales.

Our firm has an excellent record of representing individuals charged with these very serious homicide offences, both at Trial and in Appeal, and most recently represented Moustapha Dib in the Court of Criminal Appeal in 2016. Mr. Dib was convicted of murder and shoot with intent to kill in his 2012 and was released from custody in 2016 after the Court of Criminal Appeal unanimously held that his conviction was unsafe and ordered that verdicts of acquittal be entered. Mr. Dib has maintained his innocence in the face of the allegations and our  firm represented Mr. Dib throughout his proceedings. Our Ms. Ruth Parker was privileged to walk Mr. Dib to freedom from Goulburn Correctional Centre on 15 February 2016.

In addition to self-defence, the defences of duress, intoxication, sudden and extraordinary emergencyintoxicationmental impairmentaccident, and defence of another may also be available depending on the circumstances. An accused may also choose to dispute that they acted consciously, deliberately and with intention at the time of the killing, which may intersect with a mental impairment defence.

 

Murder – unintentional killing in the course or furtherance of a crime of violence

Pursuant to section 3A of the Crimes Act, it is a separate offence to unintentionally kill another in the course of a crime. This used to be referred to as the ‘felony murder’ rule. If in the course of committing a crime of violence punishable by at least 10 years imprisonment (which includes crimes such as assault with a weapon and armed robbery) a person unintentionally kills another, this is deemed to be a murder. The law will deem the acts causing the death as being an intentional killing, punishable by the same sentence as a murder, which has a maximum sentence of life imprisonment.

 

Manslaughter – unlawful & dangerous act

Manslaughter is a common law offence and will be made out if the Prosecution proves beyond all reasonable doubt that:

  1. the accused committed an act that caused the death of another person;
  2. the relevant act was committed consciously, voluntarily and deliberately;
  3. the relevant act was “unlawful”;
  4. the relevant act was “dangerous”.

Manslaughter is punishable by up to 20 years imprisonment or to a fine in addition to or without any such other order.

Dangerousness

Whether an act is unlawful is assessed according to an objective standard. A Jury must decide whether a reasonable person in the position of the accused would have understood that he or she was exposing the alleged victim to an appreciable risk of serious injury.

Manslaughter can cover a range of unfortunate circumstances. For example, if a person travelling in a car decides (as a prank) to push another person from that car and that persons falls underneath that car and dies, the prankster could be guilty of manslaughter. The unlawful act was assault, i.e. the pushing of the person from the car. A reasonable person would appreciate that they were exposing the deceased to a risk of serious injury by pushing them from the car. In addition, the Victorian Parliament has introduced specific manslaughter-type offences for unintentional killings in the course or furtherance of a crime and, single punch killings.

 

Manslaughter – single punch

In recent years, with the increase of ‘single punch’ killings and serious injuries, the Victorian Parliament has responded by introducing a provision which specifies that a single punch, delivered to the head or neck which by itself causes injury, is to be taken as a dangerous act for the purposes of a manslaughter charge. The provision (section 4A of the Crimes Act) specifically includes an example of where this charge will apply, as follows:

If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death.

 

Workplace (Industrial) Manslaughter

On 1 July 2020, the Working Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 came into force in Victoria. As part of this legislation, amendments were made to the Occupational Health and Safety Act 2004 (OHSA) which introduced the new criminal offence of workplace (or ‘industrial’) manslaughter.

This offence was introduced to bring Victoria in line with other jurisdictions who have enacted similar legislation. The offence of workplace manslaughter is a criminal offence, with both individuals or bodies corporate capable of being charged.

 Nature of Workplace Manslaughter

Workplace Manslaughter is a species of homicide that shares similarities to common law manslaughter, but is a distinct offence and has unique elements that the prosecution must prove. The offence itself can be found in section 39G(1) and (2) of the OHSA. In order to be found guilty of workplace manslaughter, the prosecution must prove beyond a reasonable doubt that:

  1. The accused person is not a volunteer;
  2. That person has engaged in conduct that is negligent;
  3. That the negligent conduct constitutes a breach of an applicable duty that the person owes to another person; and
  4. That the negligent conduct caused the death of that other person.

Section 39G(2) also contains the same test but is applicable to officers of an ‘applicable entity.’ The drafters of the legislation have included definitions for a number of terms used. These include:

Conduct

Conduct includes an act, but also an omission.

Breach of applicable duty

Conduct may amount to a breach of a duty even though any other conduct also contributed to the breach and whether or not proceedings have been instituted in relation to the other breach.

Negligent

A persons conduct is negligent if it involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged in AND it involves a high risk of death, serious injury or serious illness.

This is a slightly different test to the test for negligence in common law manslaughter. Common law manslaughter requires that an accused’s act or omission must have fallen so far below the standard of care a reasonable person would have exercised, and to have involved such a high risk of death or really serious injury, that the act or omission merits criminal punishment. It is noted that the phrase ‘merits criminal punishment’ and the ‘really’ in serious injury has been omitted and that the phrase ‘serious illness’ has been added. Furthermore, the wording has been altered from ‘so far below’ to ‘great falling short.’

There may be many arguable ways to demonstrate that particular conduct does not amount to ‘negligent’ conduct as per the act. For example, an accused person might have engaged in conduct that was a ‘great falling short of the standard of care,’ however, it may be arguable that the risk of death or serious injury thus created was only small, or moderate. Anything less than a ‘high’ risk would require the accused person to be acquitted. There are separate provisions addressing negligent conduct on behalf of bodies corporate.

Duties owed to another person

A person may owe another person an ‘applicable duty’ if the act imposes a duty on a person and it is either explicit, or implicit, that the duty is owed to another person

For example, the OHSA prescribes a number of duties on particular people. These include duties of employers to employees and other persons, duties of self-employed persons, duties of designers and manufacturers. A duty may be explicitly owed if the person owed the person to whom the duty is owed falls into a ‘class’ of persons specified in the legislation and the duty relates directly to the health and safety of that person. However, it may also be implicitly owed if the purpose of the provision is to ensure the health and safety of persons of a particular class. 

Penalties

If found guilty of workplace manslaughter, penalties can be severe. This includes a maximum of 20 years imprisonment for individuals and up to 100,000 penalty units for bodies corporate. Prosecutions for workplace manslaughter should be taken extremely seriously.

Other matters

There is no statute of limitations applicable to workplace manslaughter. A prosecution can be brought at any time. Workplace manslaughter has also been added to the few criminal offences where a prosecution can be reopened after an acquittal on application by a prosecutor to the Court of Appeal. Workplace manslaughter is also a DNA forensic sample offence, so a Court can order the retention of a DNA sample of a person found guilty of workplace manslaughter if it is in the interests of justice to do so.

How Galbally Parker can assist

 Fundamentally, workplace manslaughter is a criminal offence and both individuals and bodies corporate can be subject to prosecution. Galbally Parker, as a specialist criminal defence firm, is perfectly equipped to represent companies and individuals charged with workplace manslaughter. Galbally Parker regularly defends clients who are prosecuted by Worksafe, the Environmental Protection Authority, ASIC and other government agencies who are not Victoria Police or the Australian Federal Police. We also understand the unique industrial landscape caused by COVID-19 and the fact that employers are placed in sometimes challenging situations where the usual levels of supervision and oversight are complicated by the requirements imposed by the pandemic. We are also yet to see how these laws will interact with OHS laws surrounding social distancing and flexible work. 

Child homicide / infanticide

There are particular provisions in place, which address circumstances where someone causes the death of a child under 6 or an infant. A person who kills a child (under 6) in circumstances which would otherwise constitute manslaughter, is guilty of child homicide punishable by 20 years imprisonment. A woman who through her conduct causes the death of her child, who is under 2 years old, in circumstances that would otherwise constitute murder may be guilty of infanticide, in the circumstances where her mind was disturbed because of:

  • Not having fully recovered from the effect of giving birth to that child; or
  • A disorder consequent on her giving birth to the child.

The offence of infanticide is punishable by a maximum term of imprisonment of 5 years, in recognition of the considerable toll that post-partum depression and other related conditions can have on women.

 

Culpable driving

Culpable driving is committed in circumstances where a person by their operation of a motor vehicle causes the death of another person.

The elements are as follows:

  1. the accused was driving a motor vehicle;
  2. the driving was culpable; and
  3. the culpable driving caused the death of another person.

Driving will be culpable where the accused:

  1. Was driving recklessly in that he or she consciously and unjustifiably disregarded a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his or her driving; or
  2. Was driving negligently in that he or she failed unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case. Negligence is defined as driving a vehicle in a manner where the driver failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.

Negligence includes:

  1. Driving a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of him or her falling asleep while driving or of losing control of the vehicle;
  2. Driving whilst under the influence of alcohol to such an extent as to be capable of having proper control of the motor vehicle; or

The Prosecution does not have to show a direct causal link between the accused’s intoxication and the death of the victim. The prosecution just has to show that the driving caused the death AND they were so influenced by alcohol at the time as to be incapable of proper control of a motor vehicle. Refer to our section on Traffic and Driving Offences for further information regarding drink driving offences.

For example, you may have an accused person with a high blood alcohol content (BAC) who was driving a car, which was not road worthy at the time and had a defective steering column. However, if the accused’s driving caused the death and he or she was incapable of properly controlling a vehicle due to his BAC, he or she will be guilty of culpable driving even if there were arguably other influences at play.

Culpable driving is punishable by a maximum term of 20 years imprisonment. Parliament has also recently imposed a baseline sentence of 9 years imprisonment, being the average period, which Parliament expects be imposed on offenders.

 

Dangerous driving causing death

A person who through their driving of a motor vehicle at a speed or in a manner dangerous to the public, causes the death of another person is guilty of dangerous driving causing death. The maximum sentence is 10 years imprisonment.

If you are under investigation for or are charged with a homicide offence, it is imperative that you speak with an experienced criminal defence lawyer in relation to your situation. Please visit our contact us page for all of our details.