At Jackson John Defence Lawyers, we understand the gravity of murder charges and the profound impact they can have on your life. Murder is a complex area of law, and our team of experienced criminal defence lawyers is dedicated to protecting your rights. We have a proven track record of successfully handling some of the most challenging murder cases, and we are committed to securing the best possible outcome for our clients.
Murder
Murder is a severe criminal offence that involves the unlawful and intentional killing of another human being. It is the most serious charge one can face under the law and carries a maximum penalty of life imprisonment. Due to its gravity, murder cases are heard in the Supreme Court.
The Law
Section 18 of the Crimes Act 1900 (NSW) states that:
To secure a murder conviction, the Prosecution must establish two critical elements beyond reasonable doubt:
There are various different types of penalties that the Court can impose, which include:
Section 10 Dismissal
There are three types of section 10 penalties, including:
A section 10(1)(a) bond is a finding of guilt, but the Court does not record a conviction. A bond such as this is usually only given where you have a clear criminal and/or driving record, your offending behaviour is minor, there is little chance of you offending again, and there were mitigating factors that led to the offending. Even if these facts apply to your case, there is no guarantee you will get this type of penalty. However, cogent subjective material and robust submissions on your behalf can be very persuasive to the Court.
A section 10(1)(c) bond involves a finding of guilt, a conviction is recorded, and you can be referred to an intervention program.
A section 10A penalty involves a finding of guilt and a conviction is recorded, but no further action is taken.
Conditional Release Order (‘CRO’)
A CRO is a sentence which allows you to remain in the community, but you are supervised by Community Corrections. The Court can decide whether or not to record a conviction. The maximum term of the CRO is two years and may involve conditions such as to be not consume alcohol for the period of the bond. If you breach a CRO, you will be brought before the Judge that sentenced you and potentially be re-sentenced to a more serious penalty.
Community Corrections Order (‘CCO’)
A CCO is another type of sentence which allows you to remain in the community, but you are supervised by Community Corrections. It typically involves more onerous conditions than a CRO and you will receive a conviction. If you breach a CCO, you will be brought before the Judge that sentenced you and potentially be re-sentenced to a more serious penalty.
Intensive Corrections Order (‘ICO’)
If the Court is satisfied that imprisonment is warranted, it can order that you serve the term of imprisonment in the community while subject to the supervision of Community Corrections and conditions such as community service, curfew, or rehabilitation. If you breach an ICO, the Parole Board will determine whether to order you serve the remainder of the period in full-time custody. This is because an ICO is a sentence of imprisonment ordered to be served in the community.
Imprisonment
The maximum penalty for murder is life imprisonment. New South Wales does not have a mandatory minimum term of imprisonment for murder; however, the standard non-parole period is 20 years. If the term of imprisonment ordered by the Court is more than three years, the Court must impose a non-parole period (the minimum time you must spend in gaol). In State offences, the non-parole period is usually about 75% of the overall sentence. However, this period can be significantly reduced with impactful submissions on your behalf highlighting good prospects of rehabilitation in addition to other subjective circumstances
The Parole Board will determine whether you are to be released. Typically, the Parole Board will consider any material submitted on your behalf and the decision may be based upon an evaluation of the following matters:
Self-Defence
The law states that:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
Once self-defence is raised, the onus lies with the Prosecution to negative self-defence beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in self-defence. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Duress
Duress involves circumstances where you have been forced to commit a crime against your will, whether it be by way of threat, intimidation, or some other form of coercion. The threat must be so serious that it would have caused an ordinary person of like firmness in your situation to act in the same way. Furthermore, the threat must be the operative cause of your actions. In other words, if you are not worried about the threat at the time of the commission of the offence, or some other factor influences your decision to commit the crime, duress may not be established. Finally, the threat must be continuing. What this means is that if there is an opportunity at some point for you to obviate the threat, by reporting it to the police for example, duress may not be accepted.
Once duress is raised, the onus lies with the Prosecution to negative duress beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting in duress. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Necessity
For necessity to be established, the following must exist at the time of the commission of the offence:
As is the case with self-defence, the onus lies with the Prosecution to negative necessity beyond reasonable doubt. In other words, it is encumbent upon the Prosecution to eliminate any reasonable possibility that you were acting out of necessity. In considering this question, the evidence should be taken at its highest in favour of the accused. It is not essential that there be evidence from you as to your beliefs and perceptions, but it must be raised fairly on the evidence.
Mental Illness
Section 23A of the Crimes Act 1900 (NSW) provides that murder is reduced to manslaughter where a person’s capacity to understand events, or to judge whether the person’s actions were right to wrong, or to control himself or herself, was substantially impaired because of a mental health impairment or cognitive impairment, provided the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Section 23A(8)(a) of the Crimes Act 1900 (NSW) provides that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment.
As in the case of manslaughter by act or omission due to provocation, what is ordinarily involved in manslaughter by substantial impairment is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The relevant impairment diminishes, but does not negate, the accused’s responsibility.
Extreme Provocation
In NSW, individuals have the option to employ the concept of extreme provocation as a partial defence when facing a murder charge. If someone accused of murder can demonstrate that they acted in response to extreme provocation, they may be found guilty of manslaughter rather than murder.
The law provides that individuals can establish extreme provocation as a partial defence only when:
If these criteria are met, the jury is obligated to acquit the accused of murder and instead find them guilty of manslaughter.
Why Jackson John?
Murder is a serious offence, and if you have been charged, it is important to seek legal advice immediately. Jackson John Defence Lawyers is a leading criminal defence law firm with extensive experience in defending clients charged with murder. We understand the serious consequences that a conviction can have, and we will work tirelessly to protect your rights and interests.
We will carefully review your case and develop a strong defence strategy. We will also keep you informed of your options and advise you on the best course of action throughout the legal process. If you have been charged with murder, do not hesitate to contact Jackson John Defence Lawyers today. We are here to help you.
What is Manslaughter?
The Crimes Act 1900 (NSW) does not define manslaughter, except to say that it includes all unlawful homicides other than murder. At common law, there are two types of manslaughter:
These are known as involuntary manslaughter because they do not require the intention to kill or cause grievous bodily harm.
Under the Crimes Act 1900 (NSW), there are also three statutory categories of manslaughter, which are based on the reduction of murder to manslaughter:
The first two categories are known as voluntary manslaughter. The third category may or may not be voluntary, depending on whether the fact finder accepts that the accused had the intention to kill or cause grievous bodily harm.
Examples
Involuntary manslaughter
Voluntary manslaughter
Categories of Manslaughter
Although there are different categories of manslaughter — some involving the requisite intent for murder, others not — there is no hierarchy of seriousness between voluntary and involuntary manslaughter.
This type of manslaughter does not require the intent to kill or cause serious bodily harm. However, the unlawful and dangerous act must be intentional and voluntary. It must also be proven that a reasonable person in the position of the accused would have known that they were putting the victim at a significant risk of serious injury. Motor vehicle manslaughter generally falls under the category of criminal negligence or unlawful and dangerous act.
This type of manslaughter occurs when the accused person does something knowingly and voluntarily, without intending to cause death or serious bodily harm. However, the accused person’s actions must fall so far below the standard of care that a reasonable person would exercise, and the actions must pose such a high risk of death or serious bodily harm, that the accused person deserves to be punished by the criminal justice system.
Manslaughter by criminal negligence involves the legal concept of duty of care, which arises when one individual is legally obligated to take reasonable precautions in specific circumstances to protect the safety and well-being of another. In this respect, a duty of care can arise in the following scenarios:
Many cases of manslaughter by criminal negligence involve the failure of parents to obtain medical assistance for their children following the infliction of injuries, or alternatively a failure to provide proper care such as nutrition, hydration, medication, and medical care for ailing parents, for whom an individual is the primary carer.
Murder is reduced to manslaughter where the act or omission causing death was done or omitted under provocation. The partial defence is available where the act or omission is the result of a loss of self-control induced by the deceased’s conduct where that conduct could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm.
Factors relevant to the determination of the level of culpability in provocation cases are as follows:
The degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.
Section 23A of the Crimes Act 1900 (NSW) provides that murder is reduced to manslaughter where a person’s capacity to understand events, or to judge whether the person’s actions were right to wrong, or to control himself or herself, was substantially impaired because of a mental health impairment or cognitive impairment, provided the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Section 23A(8)(a) of the Crimes Act 1900 (NSW) provides that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment.
As in the case of manslaughter by act or omission due to provocation, what is ordinarily involved in manslaughter by substantial impairment is a conclusion that the taking of human life was the consequence of a deliberate and voluntary act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The relevant impairment diminishes, but does not negate, the accused’s responsibility.
This situation arises when a person uses deadly force to defend themselves or another person, or to prevent unlawful imprisonment, but their response is not reasonable in the circumstances, even though they believed it was necessary. If the person deliberately killed or seriously harmed the victim, they can still be found guilty of manslaughter if the jury believes that they may have believed their actions were necessary in self-defence, but that their response was not reasonable in the circumstances.
The partial defence to murder of excessive self-defence appears in section 421 of the Crimes Act 1900 (NSW). It applies to offences whenever committed, except where proceedings were instituted before the commencement of the provision in February 2002. Section 421(1) provides the defence of excessive self-defence reduces murder to manslaughter if:
but the person believes the conduct is necessary:
What are the Penalties?
The maximum penalty for manslaughter is 25 years imprisonment. Since the offence covers a wide variety of circumstances, calling for a wide variety of penal consequences, determining an appropriate sentence for manslaughter is known to be particularly difficult. Although some assistance may be received from a consideration of facts of other cases and the sentences imposed therein, those cases do not determine an inflexible range.
In R v Ali [2005] NSWSC 334 at [56], it was said that “it is often not of any great consequence whether a killing is characterised as coming within any particular head of manslaughter. Rather, the critical question is what sentence is required to reflect the objective and subjective facts, and, if necessary, deterrence”.
Although there is no murderous intent involved in manslaughter by unlawful and dangerous act, there will be cases where a heavy sentence will be appropriate. Where the unlawful and dangerous act is of high objective gravity, the offence may be assessed as so grave as to warrant the maximum penalty. It is not a matter in mitigation that an accused person neither desired nor contemplated the deceased’s death. If the accused had so contemplated, there would be liability for murder.
Significant sentences may be imposed in cases of criminal negligence involving members of the public. In R v Simpson [2000] NSWCCA 284, the deceased died by coming into contact with an electric wire system erected by the accused to protect an area of land used to grow marijuana. A non-parole period of 6 years and balance of 3 years was imposed.
As a matter of logic, the degree of provocation will reduce the seriousness of the offence, and also the degree of violence employed will increase the objective gravity of the offending. Extreme provocation may be accompanied by excessive violence, pointing in opposite directions on the question of objective gravity. In exceptional cases involving a history of domestic violence perpetrated by the deceased a non-custodial sentence may be appropriate.
It is necessary for a sentencing judge to consider the degree to which an accused person’s mental condition was impaired beyond that required to make out the partial defence. While an impairment of greater degree may tend towards a further diminution in culpability, it may also raise the issue of future dangerousness.
The emphasis in section 421 of the Crimes Act 1900 (NSW) on the response of an accused person “in the circumstances as he or she perceives them” requires a sentencing Court to make a finding as to what the accused perceived the circumstances to be, and to evaluate the degree to which the conduct departed from what would have been a reasonable response to those circumstances as perceived. Both questions are central to the sentencing exercise where excessive self-defence is established.
Why Jackson John?
When facing charges as grave as murder and manslaughter, the choice of legal representation is paramount. Jackson John Defence Lawyers stand out as your trusted allies in navigating the intricate legal landscape. Our seasoned experts possess the knowledge and experience to help you understand your options, mount a robust defence, and seek the most favourable outcome.
© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
Legal Practitioners employed by this entity are members of the scheme and participate in the Discretionary Higher Cap.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community.
We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.
