Manslaughter/Murder

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What is Manslaughter/Murder ?

Criminal charges involving violent crimes such as Murder or Manslaughter are homicides which are prosecuted under Section 18 of the Crimes Act 1900 (NSW)

Because of the nature of the crimes and possible heavy penalties, allegations involving murder or manslaughter require robust criminal defence.

Definitions

The definitions when it comes to Murder/Manslaughter are as follows;

  1. Voluntary manslaughter

Is killing with the intent for murder but where a partial defence applies –namely loss of control, diminished responsibility or killing pursuant to a suicide pact;

  1. Gross negligence manslaughter

Is conduct that was “grossly negligent” given the risk of death, and did kill;

  1. Unlawful and dangerous act manslaughter

Is conduct taking the form of an unlawful act involving a danger of some harm, that resulted in death).

The first definition above is known as “voluntary manslaughter” – and the second and third definitions are known as “involuntary manslaughter”.

There are also other types of manslaughter, such as corporate manslaughter.

MURDER

Suffice to say murder as a crime is committed where the offender:

  • is of sound mind and discretion (i.e. sane);
  • unlawfully kills (i.e. not self-defence or other justified killing);
  • any reasonable creature (human being);
  • in being (born alive and breathing through its own lungs
  • under the Queen’s Peace;
  • with intent to kill or cause grievous bodily harm (GBH).

Prosecution of a murder charge may rely on the time of death following injuries inflicted on an individual – for example, if injuries were inflicted and the victim died more than three years following the injury.

Murder and manslaughter cases can be extremely complex – and it is vital to seek expert legal advice if there is a possibility of being charged with murder or manslaughter, including manslaughter charges brought as a result of causing death by dangerous driving.

Case law/Jurisdiction

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 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.

The Law

The offence of Murder is contained in section 18 of the Crimes Act (NSW). The section states:

(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.

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 of Murder/Manslaughter.

To establish Murder/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 MURDER/manslaughter what are your options?

National Criminal Lawyers have been successful in defending a number of Murder/Manslaughter charges where the prosecution could not establish each of the elements of the offence.

NCL offer the following options for those who have been charged with Murder/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 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.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work to get you the best result.

Maximum Penalties

Murder/Manslaughter carries a maximum penalty of life Imprisonment or 25 years.

Please note that the penalties mentioned are reserved for the worse case offending and may be unlikely the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended several people charged with Murder/Manslaughter and are experts at Briefing Counsel for these hearings.

Defences

Defence of Murder/Manslaughter charges will rely on intent, motive, forensic evidence and witness statements, as well thorough preparation of evidence.

Some of the possible defences available for those charged with Murder/Manslaughter can include:

  • To maintain your innocence if you did not commit the act;
  • To argue that you did not do an act or did not fail to act;
  • To argue that you did not cause the death of the person;
  • To argue that you did not intend to kill the person;
  • To argue that you did not intend to cause the person really serious injury;
  • To argue that you did not foresee that it was probable that death would result; or
  • Duress-If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”
  • Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.
  • Self-defence – If you were defending yourself or another OR yours or another’s property you may have a Defence of Self-Defence even in situations where “Pre-Emptive Force” is used. Moreover, at times there “No duties or need to retreat” and/or;
  • There is a partial defence of provocation.

Possible Penalty's

In NSW, a court can impose any of the following penalties for a Murder/Manslaughter charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention).

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available.

Case Studies

While living abroad in London United Kingdom our senior solicitor was instrumental at obtaining and furnishing expert psychological and other forms of evidence and Briefing Counsel at the famous Old Bailey Crown Court for a charge of Murder. As a result of that research and information the lady we were representing beat the murder charge and plead guilty to Manslaughter instead. Due to our solicitor’s due diligence a Lady who had no previous convictions who in a fit of momentary loss of self-control stabbed her mother in law over 28 times with a kitchen knife while the victim was in the Bath received 9 years imprisonment opposed to life. This was an excellent result. To receive this result, we had to provide the evidence that our client (1) had no previous record (2) had a mother in law that was very very burdensome to care for (3) that the husband did not help with the caring responsibilities and (4) that the accused and many others had made numerous recorded attempts with an array of authorities to get some respite (but to no avail). In light of this evidence the Crown agreed to drop the charge of Murder and the client plead to the lessor charge of voluntary manslaughter on the grounds of diminished responsibility.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Murder/Manslaughter offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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