Murder and Manslaughter in Victoria

Murder is an offence in common law. However, section 3 of the Crimes Act 1958 (Vic) legislates that a person found guilty of murder is liable to a maximum penalty of life imprisonment. Due to the serious indictable nature of murder charges, cases must be heard in the Supreme Court of Victoria.

In Victoria, murder is recognised as the intentional and unlawful killing of another person. To prove a charge of murder, the prosecution must demonstrate beyond a reasonable doubt that the accused:

• Voluntarily committed acts which caused the victim’s death;
• Had the intention to kill, or cause really serious injury or knowing it was probable that death or serious injury would result; and
• Had no lawful justification or defence for those acts.

The offending act does not have to be the sole cause of the victim’s death to be considered murder. The Court can still find a defendant guilty of murder if the act significantly contributed to the death. However, the act must have been done voluntarily, meaning that the accused had conscious control of their body movements.

Also, note that the accused can be found guilty if they knew it was probable that serious injury would result from their voluntary acts. This is called reckless murder. An offence is considered “reckless” if the accused intentionally committed an act and knew that it could reasonably cause harm or kill someone, even if they did not intend to harm anyone. In other words, the accused was willing to run the risk of someone else being injured or killed when they committed the act.

As such, a number of defences may exist in relation to a murder charge, depending on the facts of the case. An expert criminal defence lawyer will be able to assess whether any legal defence is applicable in your matter given the circumstances. Defences to murder might include:

• Self-defence;
• Duress;
• Automatism; or
• Provocation (for homicides committed prior to 23 November 2005).

If the prosecution fails to prove any of the above elements beyond a reasonable doubt or a legal defence can be relied upon, the defendant cannot be held criminally liable for a charge of murder. This is why it is crucial to obtain expert legal advice from a criminal lawyer who is experienced in defending murder cases and matters, and has extensive knowledge of the relevant laws.

Section 3A of the Crimes Act 1958 (Vic) legislates that a person is liable to be convicted of murder if they unintentionally kill someone in the course or furtherance of a violent crime. This offence is sometimes referred to as constructive murder or statutory murder. Under this law, a violent crime is one that has a necessary element of violence and carries a maximum penalty of 10 years imprisonment or more. Examples of violent crime include rape and armed robbery.

Section 6 of the Crimes Act 1958 (Vic) refers to infanticide. Infanticide is an indictable offence that carries a maximum penalty of 5 years imprisonment and can be heard in either the County or Supreme Court of Victoria. To prove a charge of infanticide, the prosecution must demonstrate beyond a reasonable doubt that the accused mother:

• Carried out conduct that caused the death of her child;
• The circumstances of the conduct would constitute murder; and
• At the time of carrying out the conduct, was mentally disturbed because:

                 •  She had not fully recovered from the effect of giving birth to that child within the preceding 2 years; or
                 •  She suffered from a disorder which was a consequence of giving birth to that child within the preceding 2 years.

Voluntary manslaughter is an offence at common law. It is sometimes also referred to as manslaughter by unlawful and dangerous act. Section 5 of the Crimes Act 1958 (Vic) stipulates that a person found guilty of manslaughter is liable to a maximum penalty of 25 years imprisonment. The majority of manslaughter matters are heard in the Supreme Court of Victoria, but very rarely cases might be dealt with in the County Court.

In Victoria, voluntary manslaughter is recognised as an intentional killing where mitigating factors are present. To prove a charge of voluntary manslaughter, the prosecution must demonstrate beyond a reasonable doubt that:

• The accused committed an act which caused the victims death;
• The accused committed the act consciously, voluntarily and deliberately;
• The act was unlawful; and
• The act was dangerous.

Voluntary manslaughter is different from murder because, although the act was intentional, certain circumstances may have provoked the death of the victim. In this sense, manslaughter is considered less premeditated than murder. For example, if a person is killed in the course of a heated argument, the argument itself may amount to provocation.

The accused’s act does not have to be the sole cause of the victim’s death. The Court can still find a defendant guilty of manslaughter if the act significantly contributed to the death.

Even if the accused did not intend to kill the victim, they can still be found guilty of voluntary manslaughter if they committed the offending act consciously, voluntarily and deliberately.

An act is considered “unlawful” if it constitutes a breach of criminal law. In voluntary manslaughter cases, the prosecution must demonstrate that the accused’s act amounts to an unlawful offence by proving each element of that said offence. However, an act cannot be considered unlawful if the accused proves that they have a legal defence to the relevant offence.

In deciding whether or not an act should be considered “dangerous”, an objective test must be applied. An act is dangerous if a reasonable person in the position of the accused, performing the relevant act, would have realised that they were exposing the victim to an appreciable risk of serious injury. Whether or not the accused themselves actually realised that the act was dangerous is irrelevant. Further, it is up to the jury to determine what they deem to be a “serious injury”.

If the prosecution fails to prove any of the above elements beyond a reasonable doubt or a legal defence can be relied upon, the defendant cannot be held criminally liable for a charge of voluntary manslaughter. This is why it is crucial to obtain expert legal advice from a manslaughter defence lawyer who is experienced in manslaughter matters and has extensive knowledge of the relevant laws.

Involuntary manslaughter is an offence in common law. It is sometimes also referred to as negligent manslaughter. Section 5 of the Crimes Act 1958 (Vic) stipulates that a person found guilty of manslaughter is liable to a maximum penalty of 25 years’ imprisonment. The majority of manslaughter matters are heard in the Supreme Court of Victoria, but very rarely cases might be dealt with in the County Court.

In Victoria, involuntary manslaughter is recognised as an unlawful killing without the intent to kill or cause really serious injury. To prove a charge of involuntary manslaughter, the prosecution must demonstrate beyond a reasonable doubt that death resulted from either the criminal negligence or, an unlawful dangerous act by, the accused.

Manslaughter by criminal negligence requires proof:

• The accused owed the victim a duty of care;
• The accused breached that duty by criminal negligence;
• The accused committed the act which breached the duty of care consciously and voluntarily; and
• The accused’s breach of the duty of care caused the victim’s death.

Manslaughter by unlawful dangerous act requires proof:

• The accused intentionally committed an unlawful act;
• That unlawful act was dangerous (a reasonable person in the same position would consider that act created an appreciable risk of serious injury);
• The unlawful and dangerous act was a substantial and operating cause of the death of the victim.

Involuntary manslaughter differs from murder and voluntary manslaughter because the accused lacks intent to kill or cause serious injury. Rather, the consequences of involuntary manslaughter arise due to the reckless or negligent illegal behaviour of the accused. For example, reckless driving causing the death of a passenger may amount to involuntary manslaughter.

Whether or not the accused owed the victim a duty of care is a complex legal question and will depend on the circumstances of the case. A duty of care may arise due to the context of the situation, the relationship between the parties, a specific statute or any other number of considerations.

Further, an objective test must be applied when assessing whether or not the accused breach their duty of care by criminal negligence. An act or omission might amount to criminal negligence if it warrants criminal punishment because:

• It falls so far below the standard of care that a reasonable person would have exercised in the accused’s position; and
• It involved such a high risk of death or serious injury.

The nature of the duty of care may be taken into consideration when assessing criminal negligence. Whether or not the accused themselves actually realised that the act would result in death or injury is irrelevant.

The accused’s act does not have to be the sole cause of the victim’s death. The Court can still find a defendant guilty of involuntary manslaughter if the act significantly contributed to the death.

If the prosecution fails to prove any of the above elements beyond a reasonable doubt or a legal defence can be relied upon, the defendant cannot be held criminally liable for involuntary manslaughter. This is why it is crucial to obtain expert legal advice from a criminal lawyer who is experienced in manslaughter matters and has extensive knowledge of the relevant laws.

Section 4A of the Crimes Act 1958 (Vic) legislates that a person can be found guilty of voluntary manslaughter if the victim dies due to:

• A single punch or strike delivered to any part of the person’s head or neck; and
• By itself, the strike or punch causes an injury to the head or neck.

Even if the victim dies from an impact other than the punch itself (e.g. the victim’s head striking the pavement), the accused is still liable to a charge of voluntary manslaughter. It is irrelevant whether the single punch or strike is one of a series of punches or strikes.

Section 6B of the Crimes Act 1958 (Vic) stipulates that a person is liable to be convicted of manslaughter (and not murder) if they survive a suicide pact but killed the deceased party. If found guilty, the defendant is liable to a maximum penalty of 10 years imprisonment. In these cases, the prosecution must prove all the elements of murder. The onus is on the defence to prove that the death occurred in pursuance of a suicide pact.