Murder remains amongst the most serious offences a person can be charged with in Victoria. So, what actually is murder? And what are the different degrees you can be charged under?
Legal definition of Murder
In Victoria, murder is a crime defined at common law. This means that the elements are outlined by the courts rather than through legislation. Murder involves the unlawful and intentional killing of another person. For a person to be found guilty of this offence, the prosecution must prove beyond reasonable doubt the following four key elements:
- Actus reus (the physical elements)
- The accused caused the victims death. It does not need to be the sole cause, but the action must have significantly contributed to the death.
- Those acts were committed voluntarily.
- Mens rea (the mental element)
- The accused intended or was reckless that murder would result.
- There was no lawful justification for the murder.
It is important to note that you can still be found guilty of murder even if you did not intend to cause death, if a reasonable person in your position would believe that your actions would cause death or serious injury. Reckless murder is most common in cases of serious assault.
Section 3 of the Crimes Act 1958 (Vic) sets out the punishments that court must impose if you are found guilty of murder under the common law. Life imprisonment is maximum penalty you can receive. As murder is an indictable offence, the majority these matters are heard in the Supreme Court of Victoria, but rarely cases can be dealt with in the County Court.
Different degrees of murder
- Intentional or Reckless Murder
- Constructive murder
- Voluntary manslaughter
- Involuntary manslaughter
- Defensive homicide
Constructive murder
Under s 3A of the Crimes Act 1958 (Vic), a person will be convicted under the charge of murder if they unintentionally kill someone in the furtherance of a crime of violence. Such violent crimes may include aggravated robbery, reckless conduct endangering life or rape. Unlike common law murder, this offence does not require that the accused acted intentionally when causing the victim’s death. Being convicted under statutory murder will carry with it a penalty of ten years or more.
Manslaughter by Unlawful and Dangerous Act
Manslaughter by unlawful and dangerous act (also known as voluntary manslaughter) is a common law offence. To be found guilty under this offence your action must have acted voluntarily and unlawful. An act will be consider ‘unlawful’ if it involves a breach of the criminal law. Common offences relied upon include assault, burglary or unlawful administration of drugs. However, criminal offences that rely on negligence or gross negligence may not qualify as unlawful.
Unlike murder, this offence does not require you to have intended to cause death or serious injury. Generally, it is viewed that manslaughter will be less premediated than murder. Under s 5 of the Crimes Act 1958 (Vic) a person found guilty of the offence will liable to a maximum penalty of 25 years imprisonment.
Negligent Manslaughter
Negligent manslaughter (also known as involuntary manslaughter) is an offence under common law. This occurs when the accused negligently breaches their duty of care to the victim, and this breach causes the victim’s death. The act will constitute criminal negligence if it falls below the standard of care a reasonable person in the accused’s position would have exercised. Once again, the accused’s action does not need to be the sole cause of the death.
Unlike with voluntary manslaughter, the prosecution does not need to prove that the accused’s actions were unlawful, merely that they were negligent in exercising their duty of care. Involuntary manslaughter also differs from murder, as no element of intent to cause death is required to be established. Instead, the prosecution only needs to prove that the death was caused by the accused’s negligent behaviour.
Under s 5 of the Crimes Act 1958 (Vic) a person found guilty of the offence will liable to a maximum penalty of 25 years imprisonment.
Defensive Homicide
Defensive Homicide is effectively an offence of murder committed with a legal justification. In order to establish defensive homicide, the burden of proof will shift to the accused. Meaning, they will be required to establish beyond reasonable doubt one of the available under the Crimes Act 1958 (Vic). An offence that may otherwise be murder, can potentially be set aside on the basis of the following defences; self-defence, mental impairment, duress and a sudden or extraordinary emergency. There is the defence of provocation is no longer available in Victoria
Other murder related offences to consider include dangerous or culpable driving causing death, workplace manslaughter, single punch manslaughter, infanticide and suicide pacts.
Seeking Legal Advice for Murder Charges
It is imperative that if you have been charged with any of these murder or manslaughter offences you seek legal advice from a murder and manslaughter lawyer at Galbally Parker Criminal Lawyers. We have experience in all types of murder offences making us best positioned to provide you with advice on what defences may be available to you and what your options are when dealing with your matter.
