Manslaughter & Murder Defence Lawyers Melbourne

Murder is the intentional and unlawful killing of another person. The maximum penalty for murder is life imprisonment, as stated in Section 3 of the Crimes Act 1958.

A defendant to a charge of murder must be proved beyond reasonable doubt to have:

• The accused caused the victim’s death

• The accused’s actions were conscious, voluntary and deliberate

• At the time of performing the actions that caused the death, the accused intended to kill or seriously injure, knowing that death or serious injury would occur; and

• The accused killed the victim without lawful justification.

Possible defences to a charge of murder may be self-defence, duress, or automatism.

In order to be found not guilty due to self-defence, the threshold test that must be met includes that the actions were necessary in the mind of the accused and that the conduct was a reasonable response in the circumstances as the person perceives them. The test has both a subjective and an objective aspect.

The defence of automatism refers to actions that are undertaken without conscious volition and was established in Australia by the 1950 decision of the Victorian Supreme Court, R v Cogdon.

Provocation has been abolished as a defence to murder in Victoria and can only be argued as a defence in murders alleged to have occurred prior to 2005.

Negligent Manslaughter is a common law offence. This form of manslaughter is by criminal negligence. Negligent Manslaughter has the following four elements, each of which the prosecution must prove beyond reasonable doubt:

• The accused owed the victim a duty of care;

• The accused breach that duty by criminal negligence;

• The act which breached the duty of care was committed consciously and voluntarily; and

  The accused’s breach of the duty caused the victim’s death (R v Sood (Ruling No 3) [2006] NSWSC 762).

An accused may owe a victim a duty of care in many different settings. For example, the common law imposes a general duty on all people who are doing a dangerous act, or who have charge of anything dangerous, to take ordinary precautions to avoid harming people. An accused may also owe a duty of care to a victim to act due to their relationship with the victim, a statutory obligation, the accused voluntarily assuming a duty to act, or the accused wrongfully placing the victim in danger.

An accused will breach their duty to the victim by criminal negligence if their act or omission has 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.

The prosecution must also disprove any relevant defences. These include self-defence, duress and sudden or extraordinary emergency.

In order to be found not guilty due to self-defence, the threshold test that must be met includes that the actions were necessary in the mind of the accused and that the conduct was a reasonable response in the circumstances as the person perceives them. The test has both a subjective and an objective aspect.

The defence of duress refers to actions committed due to a threat of physical harm if the act is not done. It must be shown that the accused’s will was really an absolutely constrained that they became a mere innocent instrument of the crime.

The defence of sudden or extraordinary emergency is available if the accused reasonably believes that the circumstances of sudden or extraordinary emergency exist, and the conduct is the only reasonable way to deal with the emergency, and the conduct is a reasonable response to the emergency (Crimes Act 1958 (Vic), s 322R).

Unlawful and Dangerous act manslaughter is a common law offence. This form of manslaughter has the following four elements, each of which the prosecution must prove beyond reasonable doubt:

• That the accused committed an act that caused the death of another person;

• That the relevant act was committed consciously, voluntarily and deliberately;

• That the relevant act was “unlawful”; and

• That the relevant act was “dangerous”.

To be “unlawful”, the act must have involved a breach of the criminal law. However, it seems that not all breaches of the criminal law are classified as “unlawful” for the purpose of this element. Although not clear, it appears that only offences requiring proof of mens rea (guilty mind) fall within that category (R v Nguyen (Ruling No 2) [2010] VSC 442). Deaths resulting from negligence may need to be determined under principles of Negligent Manslaughter.

An accused act will not be “unlawful” if the accused had a defence to the relevant offence. The jury will therefore need to consider any relevant defences, such as consent, duress or self-defence.

The test for “dangerousness” is objective. It requires the jury to find that a reasonable person in the position of the accused, performing that act, would have realised that they were exposed the deceased to an appreciable risk of serious injury. The prosecution does not need to prove that the accused’s realised that his or her act was dangerous.

• Constructive Murder

• Reckless Murder

• Single Punch Manslaughter