Murder and Manslaughter

Murder is defined in section 18(1)(a) of the Crimes Act 1900 as: ‘an act or omission, causing death to another person where the death occurred due to the accused person acting or omitting to act with a reckless indifference to human life, or with an intention to kill, or an intention to inflict actual grievous bodily harm.’

To establish the offence of manslaughter, the prosecution is required to prove that you committed a punishable homicide other than murder.

There is a distinct difference between murder and manslaughter.  Murder is a voluntary act causing another person to die in circumstances you intended to cause whereas manslaughter, is an involuntary act because it does not involve your intention to cause the circumstances that occurred. Manslaughter has the same elements of murder however; the culpability of your conduct is reduced.

What the prosecution need to prove 

In order to be convicted of murder, the prosecution needs to prove beyond reasonable doubt that: 

  • You voluntarily did something resulting in the death of another person;

  • At the time of doing so, either one of the following applied:

    • You intended for the other person to die,

    • You intended to cause really serious injury or disfigurement to the other person, 

    • You had ‘reckless indifference to human life’, or

    • You were committing another crime (or an accomplice was that was with you) during or immediately after the death occurred, which has a maximum penalty of 25 years imprisonment or more (known as constructive murder).

Reckless indifference to human life refers to the doing of an act with the foresight of the probability of death arising from that act. 

There are a few types of manslaughter, with the two main categories of involuntary manslaughter, being:

  • Manslaughter by unlawful and dangerous act, and 

  • Manslaughter by criminal negligence.

In both cases, the prosecution will need to prove that your act or omission caused the death of the deceased. There is no requirement to prove that the accused had intention of causing death or grievous bodily harm (which is really serious injury or disfigurement to the other person). 

However, when prosecuting manslaughter by unlawful and dangerous act, the prosecution will need to prove that the accused caused the death of the deceased by a voluntary act that was unlawful and dangerous. An act will be classified as ‘unlawful and dangerous’ where a reasonable person in the accused’s position would have appreciated that the act exposed another person to a risk of serious injury. 

In cases of manslaughter by criminal negligence, the prosecution will need to prove that the accused acted in circumstances which involve a great falling short of the standard of care which a reasonable person would have exercised and a high risk of death or grievous bodily harm. 

For criminal negligence, the accused must have a legal duty of care to the deceased. Examples include the relationship of a parent and child, or a doctor and patient.


If found guilty of a charge of murder under section 18 of the Crimes Act 1900, the maximum penalty is life imprisonment. 

However, a Court will only be able to impose a sentence of life imprisonment where it is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

An offender’s culpability may be influenced by whether the offence involves premeditation or planning, the level of violence involved, the harm involved and an offender’s future dangerousness. 

This does not apply to a person who was less than 18 years of age at the date of the offence. If found guilty of a charge of manslaughter under section 24 of the Crimes Act 1900, the maximum penalty is 25 years imprisonment.


  • Self-defence 

  • Your conduct was not the substantial cause of the death 

  • Lack of intention

  • Lack of recklessness (you did not realise that your conduct would probably cause death at the time, or the death caused by your actions was not reasonably foreseeable at the time)

  • The cause of death was from an intervening event as being the only cause 

  • Mental Illness

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