Like culpable driving and dangerous driving causing death, murder and manslaughter are offences with which a person can be charged where there has been a death. The primary difference between murder and manslaughter is the intention of the person who is alleged to have caused the death.
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Murder
Generally speaking, the offence of murder applies when a person intentionally or recklessly kills another.
To be found guilty of murder, the prosecution must prove beyond reasonable doubt each element of the offence. That is the prosecution must prove beyond reasonable doubt that:
- the accused voluntarily committed an act/s; and
- their act/s caused the victim to die; and
- the accused either:
- had an intention to kill or cause serious injury to the victim; or
- was reckless as to whether (that is the accused knew that it was probable that) death or really serious injury would result from their actions.
The prosecution must also prove beyond reasonable doubt that the accused did not have a lawful excuse, such as self-defence, for causing the death of the victim.
Some of the defences to the charge of murder that an accused can raise include:
- self-defence.
- provocation (for charges that occurred before 23 November 2005).
- intoxication.
- duress.
- sudden or extraordinary emergency.
Manslaughter
The offence of manslaughter applies where a person kills another in circumstances where the offender’s culpability is less than that required to constitute murder. There are two types of manslaughter:
- Manslaughter by Unlawful and Dangerous Act; and
- Negligent Manslaughter.
Manslaughter by Unlawful and Dangerous Act
To be found guilty of this offence, the prosecution must prove beyond reasonable doubt the elements of the crime, which are:
- the accused voluntarily committed an act/s; and
- their act/s caused the victim to die;
- in circumstances where the act/s were unlawful and dangerous.
Examples of unlawful acts include assault, attempted assault, attempted robbery, burglary, unlawful administration of drugs and discharging a firearm in a public place.
To determine if an act is dangerous a jury will need to assess if a reasonable person in the position of the accused, would have realised that his/her actions exposed the victim to an appreciable risk of injury.
Negligent Manslaughter
Negligent manslaughter has four elements which again the prosecution must prove beyond reasonable doubt. They include:
- that the accused owed the victim a legal duty of care. An example of this is the duty a parent has to care for a child;
- that the accused breached his or her duty of care by acting in a way that falls below the standard of care a reasonable person would exercise;
- that the act or omission was committed consciously and voluntarily; and
- that it was the breach of the duty of care that caused the victim’s death.
Similar to the offence of murder, the prosecution needs to disprove any relevant defences that can be raised by the accused.
Sentencing
Both murder and manslaughter cases are heard in the Supreme Court of Victoria. Murder is an offence that carries a maximum penalty of life imprisonment while manslaughter carries a maximum penalty of 20 years’ imprisonment. Though there are many factors for a court to consider when sentencing a person, there is a significant difference in the range of penalties for murder and manslaughter with murder sentences being far heavier.
Hiring criminal lawyers in Melbourne
Murder and manslaughter cases can often be complex, with cases taking many months, and sometimes years to be resolved. They are not always won. That is why you need a lawyer who never gives up. In many instances when a homicide trial is lost, the convicted person will have grounds to appeal their decision. Where you have a basis upon which to appeal your decision, a determined and experienced criminal lawyer will be well aware of your appeal rights and will continue fighting for you even after you have been convicted. While an acquittal is always preferred, the justice system is imperfect and miscarriages of justice can and do happen. A lawyer who is able to fight for you at every stage of your case from beginning to end is essential in a homicide case.
If you have been charged with murder or manslaughter in Victoria, it is important to seek legal advice from experienced criminal lawyers in Melbourne who understand the seriousness and complexity involved with such cases.
