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Murder in Australian law

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In Australia, murder is a criminal offence where a person, by a voluntary act or omission, causes the death of another person with either intent to kill, intent to inflict grievous bodily harm, or with reckless indifference to human life.[1] It may also arise in circumstances where the accused was committing, or assisting in the commission, of a different serious crime that results in a person's death. It is usually punished by life imprisonment. Australia is a federal nation and the law of murder is mostly regulated under the law of its constituent states and territories. There is also federal murder offence available in limited circumstances.[2] [3]

South Australia

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In South Australia, the Criminal Law Consolidation Act 1935,[4] states:

"Any person who commits murder shall be guilty of an offence and shall be imprisoned for life."[5]

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."'[6]

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[7][8] life'), it clearly indicates that life imprisonment is thus the mandatory punishment for murder in South Australia. [vague]

New South Wales

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In the NSW Crimes Act 1900 murder is defined as follows:[9][10]

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...[9]

[vague]

Under NSW law, the maximum penalty for murder is life imprisonment,[11] with a standard non-parole period of 20 years,[12] or 25 years for the murder of a child under the age of 18.[12] 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.[9] Reckless indifference to human life is characterised by the awareness of the probability (as opposed to possibility),[10][13][14] of the accused's act resulting in a person's death (as opposed to merely resulting in grievous bodily harm).[15][16] Felony murder (called constructive murder in Australian jurisdictions)[9][17][18][19] and murder by omission are also recognised crimes in this jurisdiction.[20][21][22][23][24] [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.[25][26][27] If proven by the defence where there is a charge of murder, the jury will be directed to reduce the offence to manslaughter.[25][28][29][30][31] 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.[32][33][34] [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.[35]

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.[15]: para [70]  The relevant actus reus for murder is where an act (or omission) has caused death.[9]

The mens rea for murder is:

  1. an intent to kill;[9][36][37][38][39][40][41]
  2. an intent to inflict grievous bodily harm;[13][14] or
  3. reckless indifference to human life, where the defendant foresaw the probability, as opposed to possibility, of his or her actions resulting in death.[15][42]

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.[9][17][43][44]

See also

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References

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  1. ^ For e.g., Crimes Act 1900 (NSW) s 18
  2. ^ Criminal Code 1995 (Cth) s 115.1
  3. ^ Lanham, David; Wood, David; Bartal, Bronwyn; Evans, Rob (2006). Criminal Laws in Australia. Federation Press. ISBN 978-1-86287-558-6.
  4. ^ Criminal Law Consolidation Act 1935 (SA).
  5. ^ Criminal Law Consolidation Act 1935 (SA) s 11 Murder.
  6. ^ Criminal Law Consolidation Act 1935 (SA) s 5 Interpretation .
  7. ^ Balestrieri, Davide; Giraldi, Carmen (2000). Introduzione allo studio del diritto penale irlandese. I principi (in Italian). CEDAM. ISBN 978-88-13-22928-3.
  8. ^ Cadoppi, Alberto (1992). Mens rea (in Italian). Utet.
  9. ^ a b c d e f g Crimes Act 1900 (NSW) s 18 Murder and manslaughter defined.
  10. ^ a b Murray v The Queen [2002] HCA 26, (2002) 211 CLR 193, High Court.
  11. ^ Crimes Act 1900 (NSW) s 19a Punishment for murder.
  12. ^ a b Crimes (Sentencing Procedure) Act 1999 (NSW) Table Standard non-parole periods.
  13. ^ a b R v Crabbe [1985] HCA 22, (1985) 156 CLR 464 (26 March 1985), High Court.
  14. ^ a b Boughey v R [1986] HCA 29, (1986) 161 CLR 10, High Court.
  15. ^ a b c Royall v R [1991] HCA 27, (1991) 172 CLR 378 (25 June 1991), High Court.
  16. ^ Campbell v R [2014] NSWCCA 175, Court of Criminal Appeal (NSW).
  17. ^ a b Ryan v R [1967] HCA 2, (1967) 121 CLR 205, High Court.
  18. ^ R v Munro (1981) 4 A Crim R 67, Court of Criminal Appeal (NSW). LawCite records.
  19. ^ Mraz v The Queen [1955] HCA 59, (1955) 93 CLR 493, High Court.
  20. ^ R v Taktak (1988) 14 NSWLR 226, Court of Criminal Appeal (NSW). LawCite records.
  21. ^ Stone and Dobinson [1977] QB 354, Court of Appeal (England and Wales). LawCite records.
  22. ^ Burns v R [2002] HCA 35, (2012) 246 CLR 334, High Court.
  23. ^ R v Styman; R v Taber [2004] NSWCCA 245, Court of Criminal Appeal (NSW).
  24. ^ R v BW & SW [2009] NSWSC 529, Supreme Court (NSW).
  25. ^ a b Crimes Act 1900 (NSW) s 23 Trial for murder--partial defence of extreme provocation.
  26. ^ Davis v R (1998) 100 A Crim R 573, Court of Criminal Appeal (NSW).
  27. ^ Edwards v R [1973] AC 648, Privy Council (on appeal from Hong Kong).
  28. ^ Stingel v R [1990] HCA 61, (1990) 171 CLR 312, High Court.
  29. ^ Singh v R [2012] NSWSC 637, Supreme Court (NSW).
  30. ^ R v Fahda [2013] NSWCCA 86, Court of Criminal Appeal (NSW).
  31. ^ Moffa v R [1977] HCA 14, (1977) 138 CLR 601, High Court.
  32. ^ R v Johnson [2003] NSWCCA 129 (22 May 2003), Court of Criminal Appeal (NSW).
  33. ^ R v Won [2012] NSWSC 855, Supreme Court (NSW).
  34. ^ R v Sparks; R v D Stracey; R v P Stracey [2010] NSWSC 1512, Supreme Court (NSW).
  35. ^ Crimes Act 1958 (Vic) s 3B.
  36. ^ Crimes Act 1900 (ACT) s 12(1)(a).
  37. ^ Criminal Code (NT) s 156.
  38. ^ Criminal Code (Qld) s 302 Murder.
  39. ^ Criminal Code (Tas) s 157(1)(a).
  40. ^ Criminal Code (WA) s 279.
  41. ^ South Australia and Victoria do not have statutory definitions of ‘murder’ but in these jurisdictions the common law applies.
  42. ^ R v Cittadini [2009] NSWCCA 302, Court of Criminal Appeal (NSW).
  43. ^ Wilson v R [1992] HCA 31, (1992) 174 CLR 313, High Court at [318], [323]-[328], [332]-[335] per Mason CJ, Toohey, Gaudron, and McHugh JJ).
  44. ^ Hudd v R [2013] NSWCCA 57 (15 March 2013), Court of Criminal Appeal (NSW).
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