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In Australia, murder, like most criminal law, is defined by State legislation.
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In Australia, murder, like most criminal law, is defined by State legislation.
In South Australia, the Criminal Law Consolidation Act 1935, [1] states:
"Any person who commits murder shall be guilty of an offense and shall be imprisoned for life." [2]
No further definition for murder can be found within the Act. 'Life' is also poorly defined, with section 5 of the Act stating:
'"liable to be imprisoned for life" means "liable to be imprisoned for life or any lesser term."' [3]
Instead, particulars of 'murder' and 'life' are defined by the common law. However, because this provision of law uses mandatory language ('shall be imprisoned for life'), it clearly indicates that life imprisonment is thus the mandatory punishment for murder in South Australia. [ vague ]
In the NSW Crimes Act 1900 murder is defined as follows: [4] [5]
Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime... [4]
[ vague ]
Under NSW law, the maximum penalty for murder is life imprisonment, [6] with a standard non-parole period of 20 years, [7] or 25 years for the murder of a child under the age of 18. [7] In order to be found guilty of murder under the New South Wales Crimes Act 1900, intent to cause grievous bodily harm or reckless indifference to human life is sufficient to secure a conviction for murder. [4] Reckless indifference to human life is characterised by the awareness of the probability (as opposed to possibility), [5] [8] [9] of the accused's act resulting in a person's death (as opposed to merely resulting in grievous bodily harm). [10] [11] Felony murder (called constructive murder in Australian jurisdictions) [4] [12] [13] [14] and murder by omission are also recognised crimes in this jurisdiction. [15] [16] [17] [18] [19] [ vague ]
Section 23 of the Crimes Act 1900 provides for the partial defence of provocation, and can refer to actions taken by the deceased both immediately before, and prior to, the murder. [20] [21] [22] If proven by the defence where there is a charge of murder, the jury will be directed to reduce the offence to manslaughter. [20] [23] [24] [25] [26] If prior to or at the time of the committal proceedings an offender enters a plea of guilty to the lesser offence of manslaughter on the grounds of provocation, and it is accepted by the Crown, they are entitled to a discount on their corresponding sentence. [27] [28] [29] [ vague ]
However, this is not the case in Victoria, Tasmania or Western Australia - the Crimes Act 1958 (Vic), in Section 3B, states:
The rule of law that provocation reduces the crime of murder to manslaughter is abolished. [30]
In assessing guilt for murder, the intention in the precise method in which death occurred is irrelevant as long as the requisite mens rea and actus reus is satisfied. [10] : para [70] The relevant actus reus for murder is where an act (or omission) has caused death. [4]
The mens rea for murder is:
In NSW, a person can also be found guilty of murder if they kill a person during or immediately after the commission of a crime that is punishable by imprisonment of 25 years or more. [4] [12] [38] [39]
An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Generally, the common law definition is the same in criminal and tort law.
In law, provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable individual to lose self control. This makes them less morally culpable than if the act was premeditated (pre-planned) and done out of pure malice. It "affects the quality of the actor's state of mind as an indicator of moral blameworthiness."
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when an offender kills in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.
In United States law, depraved-heart murder, also known as depraved-indifference murder, is a type of murder where an individual acts with a "depraved indifference" to human life and where such act results in a death, despite that individual not explicitly intending to kill. In a depraved-heart murder, defendants commit an act even though they know their act runs an unusually high risk of causing death or serious bodily harm to a person. If the risk of death or bodily harm is great enough, ignoring it demonstrates a "depraved indifference" to human life and the resulting death is considered to have been committed with malice aforethought. In some states, depraved-heart killings constitute second-degree murder, while in others, the act would be charged with "wanton murder," varying degrees of manslaughter, or third-degree murder.
Attempted murder is a crime of attempt in various jurisdictions.
Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Other countries charge the accused under existing laws with such crimes as murder, manslaughter, attempted murder, assault or fraud.
Grievous bodily harm is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are respectively created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".
Malice aforethought is the "premeditation" or "predetermination" required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, it has a technical meaning that has changed substantially over time.
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.
The doctrine of common purpose, common design, joint enterprise, joint criminal enterprise or parasitic accessory liability is a common law legal doctrine that imputes criminal liability to the participants in a criminal enterprise for all that results from that enterprise. The common purpose doctrine was established in English law, and later adopted in other common-law jurisdictions including Scotland, Ireland, Australia, Trinidad and Tobago, the Solomon Islands, Texas, Massachusetts, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia.
Endangerment is a type of crime involving conduct that is wrongful and reckless or wanton, and likely to produce death or grievous bodily harm to another person. There are several kinds of endangerment, each of which is a criminal act that can be prosecuted in a court. In some U.S. states, such as Florida, substantially similar language is used for the crime of culpable negligence.
In the criminal law of Australia, self-defence is a legal defence to a charge of causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.
The Crimes Act 1900 is a New South Wales statute that sets out the majority of criminal offences for the state of New South Wales in Australia. It, the Commonwealth Crimes Act 1914 and the Commonwealth Criminal Code Act 1995 form the majority of criminal law for New South Wales.
Allan Baker and Kevin Crump are a notorious Australian duo of rapists and double murderers who are currently serving life sentences in prison.
Bruce Allan Burrell was an Australian convicted kidnapper and double murderer, who in 2006 was sentenced to serve life imprisonment plus 44 years for the 1995 murder of 74-year-old Dorothy Davis and the 1997 murder of 39-year-old Kerry Whelan, neither of whom was ever found, with Burrell not revealing the location of his victims' bodies. Burrell died at the Prince of Wales Hospital at Randwick, whilst still in prison custody on 4 August 2016, aged 63, from lung and liver cancer.
Ramzi Aouad is an Australian double murderer from Sydney, New South Wales, currently serving two sentences of life imprisonment without the possibility of parole for the murder of two people in October 2003.
Life imprisonment is the most severe criminal sentence available to the State and Territory Supreme Courts in Australia. Most cases attracting the sentence are murder. It is also imposed, albeit rarely, for sexual assault, manufacturing and trafficking commercial quantities of illicit drugs, and offences against the justice system and government security.
Elizabeth Lillian Fullerton is an Australian lawyer, specialising in criminal law, who has been a judge of the Supreme Court of New South Wales since February 2007.