© Hearn Legal 2016

Member of the
Law Society of

New South Wales

ONLINE ENQUIRY

Leave your details and we will
respond promptly.

DIRECT CONTACT

Hearn Legal will take your call
24 hours, seven days a week.

Contact
Hearn Legal

Christian Hearn

Principal Solicitor


christian@hearnlegal.com.au

PO Box 37
Gosford, NSW 2250

Murder
Offences

Murder is the most serious offence that can be committed. Because of its seriousness it can only be dealt with in the Supreme Court of New South Wales. Unlike other jurisdictions, NSW does not have notions of 1st and 2nd degree murder or culpable homicide. However, there are a number of ways in which murder may be committed, and how the murder is committed will effect its seriousness and ultimately the sentence that is imposed should you be found guilty. These are set out below on this page. 

If you or one of your loved ones is charged with murder you should immediately contact an experienced defence lawyer. It is essential that you are represented at the very earliest opportunity. Contact Hearn Legal 24 hours a day for a free consultation.

KILLING WITH INTENT TO KILL

The commonly understood meaning of murder is where one person kills another with the specific intent of causing death. In order to prove this offence the prosecution has to prove three things; firstly that there was a voluntary act on the part of the accused (as opposed to an accident). Secondly, that the voluntary act caused the death of the victim. Thirdly, that the death of the victim was intended by the accused.

Maximum penalty: Life imprisonment

KILLING WITH INTENT TO CAUSE GRIEVOUS BODILY HARM

If the accused does an act intending to cause ‘really serious injury’ to the victim, and in doing so the victim is killed, he or she will be guilty of murder. In order to prove this charge the prosecution must establish three things. Firstly that there was a voluntary act on the part of the accused (as opposed to an accident). Secondly, that the voluntary act caused the death of the victim. Thirdly, that when engaging in the act that caused death, the accused had the intent of causing really serious injury. An example of this offence might be stabbing someone intending only to injure them, but the person subsequently bleeds to death from the wound.


Maximum penalty: Life imprisonment

RECKLESS INDIFFERENCE
TO HUMAN LIFE

If a person does an act while foreseeing the probability that it will cause death to any person, and that person dies, they will be guilty of murder. In practice there may be very little difference between an act done with foresight of the probability of death, and an act done with intent to kill, or with intent to cause GBH. One possible example would be a driver who deliberately drives at high speed through a crowded pedestrian area with the intent of crashing his car into a shop. In this situation there is no intent to hurt anyone, but the foresight of probable death would have to be present. As with other forms of murder the prosecution must prove that the accused’s act was voluntary (as opposed to accidental).

Maximum penalty: Life imprisonment

CONSTRUCTIVE MURDER

If a person is involved in the commission of an offence which carries 25 years imprisonment or more, and somebody is killed during the execution of the crime or immediately after it, he or she can be charged with murder. In this circumstance the action which kills the victim must be voluntary (as opposed to accidental) but the accused does not need to intend to kill. Examples might be where during an armed bank heist a firearm is discharged causing death, or where the getaway driver runs down a security guard while fleeing. If the 25 year offence is being committed by a group, all are responsible for the murder even if only one of them commits the act causing death.

Maximum penalty: Life imprisonment

PARTIAL DEFENCES

If a partial defence is established, the accused will be found guilty of manslaughter instead of murder. There are three partial defences:
 

  • Substantial impairment of the mind

  • Provocation

  • Excessive self defence
     

These are ‘partial defences’ not because they excuse the killing, but because in each case the offenders culpability is reduced.

MURDER OF A POLICE OFFICER

In 2013 the NSW Parliament passed a law requiring a life sentence to be imposed on any person who murders a police officer. This means a person convicted of this offence will spend their natural life in gaol. The only prospect for release is on compassionate grounds in the final stages of life. Before an accused person can be convicted of this offence there are a number of matters that the prosecution must prove:
 

  • That the police officer was acting in the execution of his or her duty at the time; or

  • If the police officer was not on duty, that the offence was committed as a consequence or in retaliation for acts done by that officer or any other officer while executing their duty


The prosecution must also prove that the accused:
 

  • Knew or out reasonably to have known that the person killed was a police officer

  • That the killing was intentional, or that the accused was engaged in conduct that risked serious harm to police


This law does not apply to anyone under the age of 18. Nor does it apply to any person who can satisfy the court that at the time of the killing they were suffering a significant cognitive impairment.

Mandatory penalty: Life imprisonment without release