Murder & Manslaughter

The Law

Section 18 of Crimes Act 1900 (NSW) provides that:

(1) 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 punishable by imprisonment for life or for 25 years;

Every other punishable homicide shall be taken to be manslaughter:

(2) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section;

No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.

Jurisdiction / Case Law

An offence of Murder/Manslaughter is a strictly indictable offence and must be finalised in the District or Supreme Court.

Section 3 of the Criminal Procedure Act 1986 (NSW) provides that an ‘indictable offence’ is:

• An offence (including a common law offence) that may be prosecuted on indictment.
• An indictment is a formal document that the prosecution files with a court to commence proceedings usually in the District Court or Supreme Court.

The nature and elements of the offence of Murder were considered in Penza v R (2013) NSWCCA 21 at [167]. Here is what was said:

“the act causing death should be identified by the Crown and the judge should direct the jury accordingly. The Crown must also prove that it was a voluntary or willed act of the accused or his or her accomplice: This may, in an appropriate case, require the jury to determine whether there was a voluntary act of the accused, for example where the accused asserts that the discharge of the weapon was an accident. In this regard there is a distinction between a voluntary act and an intentional one.”

What must the prosecution prove?

Since Murder/Manslaughter is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt. That is a high standard of proof that the prosecution must achieve before someone can be convicted.

To establish Murder or Manslaughter, the prosecution must prove each of the following matters beyond reasonable doubt:

• That you did an act or failed to do an act;
• That the act, or failure to act, resulted in the death of another person; and
• That you either:
  • Intended to kill the person;
  • Intended to cause the person really serious bodily injury; or
  • Acted with reckless indifference to human life; that is, you foresaw that it was probable that death would result.

If you are charged with the offence of Document Containing Threats, what are your options?

National Criminal Lawyers (NCL) have been successful in defending many Murder/Manslaughter charges where the prosecution could not establish each of the elements to the required threshold of beyond reasonable doubt. We have also achieved several non-convictions for these charges for those who are found guilty or plead guilty.

It is for that reason that National Criminal Lawyers are the preferred specialist criminal solicitors in Sydney.

Our Senior Criminal Defence Lawyers, headed by Michael Moussa, one of Sydney’s Best Criminal Lawyers, will ensure that your case is closely examined to achieve the best of results.

NCL offer the following options for those who have been charged with Murder or Manslaughter:

1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that the prosecution has not proven its case beyond reasonable doubt;
3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Please contact us now for more information about your options.