Murder & Manslaughter

The law states that: 

1. A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. 
2. A person carries out conduct in self-defence if, and only if, the person believes the conduct is necessary:
   • to defend himself or herself or another person, or
   • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
   • to protect property from unlawful taking, destruction, damage or interference, or
   • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, 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 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. 

For necessity to be established, the following must exist at the time of the commission of the offence: 

1. You acted only to avoid serious, irreversible consequences to yourself or someone you were obligated to protect; 
2. You honestly and reasonably believed that you were in a situation of immediate peril; and  
3. Your actions were reasonable and proportionate to the situation. 

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. 

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. 

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: 

1. The actions of the accused, which brought about the deceased’s death, were a direct result of the deceased’s provocative conduct; and 
2. The deceased committed a serious indictable offence upon the accused, or affected accused; and 
3. The deceased’s actions caused the accused to lose self-control; and 
4. The deceased’s actions would have caused an ordinary person in accused’s position to lose self-control and kill the deceased or inflict serious grievous bodily harm upon the deceased. 

If these criteria are met, the jury is obligated to acquit the accused of murder and instead find them guilty of 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: 

• Statutory Obligation: Situations where the law itself mandates an individual to act responsibly, such as when operating a vehicle. 
• Implicit Relationship: Instances where the relationship with another person inherently implies a duty of care. For instance, a teacher naturally assumes a duty of care towards their students. 
• Contractual Duty: Obligations arising from contractual relationships, where, for example, an employer holds a duty of care towards their employees, as stipulated in their employment contract. 
• Voluntarily Assumed Duty: Cases where an individual voluntarily undertakes a duty of care through actions or conduct. 

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 provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; 
• The time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and  
• 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: 

• The person uses force that involves the infliction of death; and 
• The conduct is not a reasonable response in the circumstances as he or she perceives them; 

But the person believes the conduct is necessary: 

• To defend himself or herself or another person, or 
• To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.