Homicide refers to an unlawful act or omission that causes the death of a human being. There are two main types of homicide: murder and manslaughter. Murder is the more serious offence, but both will be heard in the highest courts of NSW and attract severe penalties. The main difference between these offences is the mental state of the accused in causing death.


What is murder?

Murder refers to intentionally causing the death of a person. Under section 18(a) of the Crimes Act 1900 (NSW), murder is committed when:

  • A voluntary act or omission of the accused causes the death of a person (the physical element), and
  • That voluntary act or omission was done with (the mental element):

Murder is also committed when a voluntary act or omission of the accused, that causes the death of a person, was done in an attempt to commit an offence punishable by at least 25 years imprisonment. This is called “constructive murder”.


The mental element

The mental element for murder is important and distinguishes this crime from manslaughter. When the mental element of a murder charge cannot be proven, the charge will likely be downgraded to manslaughter.

There are three distinct mental elements which can establish the offence of murder. The prosecution only needs to prove one for the accused to be found guilty. The lowest form of intention possible is “reckless indifference to human life”. This is where someone foresees or realises that their action would probably result in the death of another person, and then does the act anyway. The other two mental elements for the offence are “intent to inflict grievous bodily harm” and “intent to kill”.


Constructive murder (murder in an attempt to commit another offence)

Constructive murder is another way an accused can be found guilty of this crime. This occurs where the act which caused death happened in an attempt to commit, or during or immediately after the commission of, a serious offence which is punishable by at least 25 years imprisonment.

Accidentally shooting someone during a bank robbery could be charged as constructive murder. Under this method of charging, the prosecution does not have to prove intent to cause harm. The mental element is “constructed” or attributed to the accused based on the circumstances of the offence.


What is manslaughter?

Manslaughter is any unlawful killing of another human being, which does not amount to murder. Manslaughter is a crime under section 18(b) of the Crimes Act. There are two broad categories of manslaughter: voluntary manslaughter and involuntary manslaughter.


Voluntary manslaughter

Voluntary manslaughter is established in circumstances where the accused could be charged with murder, but there are mitigating circumstances such as provocation or substantial mental impairment which reduce the offender’s culpability. For example, a death caused by excessive self-defence could be charged as voluntary manslaughter.


Involuntary manslaughter

There are two types of involuntary manslaughter recognised at common law:

  • Manslaughter by unlawful and dangerous act.
  • Manslaughter by criminal negligence.

An assault which results in death could be charged as involuntary manslaughter by an unlawful and dangerous act.

Criminal negligence occurs where there is “a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.” Many cases of manslaughter by criminal negligence involve the failure of parents to obtain medical assistance for their child who has suffered serious injury.




Murder sentencing

The maximum penalty for murder is life imprisonment.


Manslaughter sentencing

The maximum penalty for manslaughter is 25 years imprisonment.


Typical sentencing guidelines

Most people found guilty of murder will receive a prison sentence.

Manslaughter, however, covers a wide range of circumstances and criminality. Sentences for people found guilty of manslaughter vary significantly.


Frequently Asked Questions

What is the difference between murder and manslaughter?

The key difference between murder and manslaughter is the intention of the accused. Murder is the more serious charge. For murder to be proven it must be shown that the accused either intended to kill the other person, intended to inflict grievous bodily harm, or acted with reckless indifference to human life.  If this cannot be shown, the charge will likely be downgraded to manslaughter.

In which court will murder and manslaughter charges be heard?

Murder and manslaughter are both strictly indictable offences and will be heard in the District or Supreme Courts.

What are the potential defences to murder?

To defend a criminal charge of murder, it is often argued that the accused did not have the required mental state, did not intend to cause the death, or that it was an accident.

Self-defence could also be a defence to murder. To establish self-defence it must be shown that:

  • The accused believed their conduct was necessary in order to defend themselves, and
  • The accused’s actions were a reasonable response in the circumstances as they perceived them.

The conduct cannot be unreasonable or excessive. For instance, if someone pokes you in the chest, you have no right to hit them over the head with a baseball bat.

Other defences include duress and necessity. These defences might help you avoid a criminal conviction.

Typically, where these defences are successful, they will lead to the charge being downgraded from murder to manslaughter, as opposed to absolving the accused from criminal responsibility.

What is battered women syndrome?

Battered woman syndrome refers to the altered mental state of a woman who has been subjected to prolonged domestic violence. In some cases women respond to long-term or repeated abuse by assaulting or killing their partner, in situations where there was no immediate threat of violence. Battered woman syndrome can be raised by the accused to bolster defence arguments of provocation, self-defence, or duress.

Can you get bail for a murder charge?

Yes. Bail can be obtained for a murder charge but it is difficult, particularly since the implementation of new laws. Murder is a “show cause” offence. This means that there is a presumption against bail and it is the responsibility of the accused to show the court why their detention is not justified.

Can all murder charges be defended?

A criminal defence lawyer will carefully examine the evidence against their client. Murder cases require the highest scrutiny of available evidence including DNA, fingerprints, voice recognition, identification, alibi, motive, medical evidence, alleged confessions, and available defences. Once a conclusion has been reached on the prospects for success at trial, instructions can be sought from the client as to whether they want to defend their matter.

Some clients provide instructions to plead guilty. If this occurs, the aim is to assist the client through the criminal justice system and obtain the best sentencing result possible. It might be the case that they want to explore pleading guilty to a lower charge with a lesser sentence, due to the circumstances in which the death occurred.

How can we help?

We are experienced in successfully defending murder and manslaughter charges.

Book a consultation or call us on 1300 668 484 for 24/7 legal advice.