The Law, Defences and Penalties for Murder in New South Wales

by Ugur Nedim

It has been reported that a man is dead and other is in a critical condition after a double stabbing in Sydney’s western suburbs overnight.

Police say that at around 12.20am this morning, emergency services received a report that a man had been stabbed in the neck at a residence in Bertha street, Merrylands.

Around twenty minutes later, a second report was received of another man stabbed in the neck on Uren Place in the same suburb.

A 49-year old man at Bertha Street and a 40-year old man at Uren Place were conveyed to hospital a short time later in critical conditions.

The 40-year old died a short time later.

Crime scenes were established and a search commenced with the assistance of PolAir and the Police Dog Unit.

A 26-year old male was arrested shortly thereafter on Bird Avenue in Guildford, and taken to Granville Police Station for questioning on suspicion of murder.

It is believed the three men were known to each other.

Inquiries are continuing and a report will be prepare for the New South Wales coroner.

The offence of murder in New South Wales

Murder is an offence under section 18 of the Crimes Act 1900 which carries a maximum penalty of life imprisonment.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

  1. Caused the death of another person,
  2. Did so by way of a voluntary act or omission,
  3. Did so with the intention to kill or inflict grievous bodily harm, or with reckless indifference to human life, or during or immediately after the commission of an offence punishable by a maximum penalty of 25 years in prison (constructive murder).

Causation

An act or omission is considered to have ‘caused the death’ of another if it was a ‘substantial or significant caused’ of the death, even if some other cause was also operating at the time.

An act or omission will have caused death unless there is a break in the chain of causation, which will only occur if the original injury is merely the setting in which the subsequent cause operates, or if the subsequent cause is so overwhelming that it significantly diminishes the relevance of the original cause.

Examples of where the chain of causation is not broken include:

  • Where the victim refuses medical treatment on religious grounds,
  • Where subsequent medical treatment is poor, unless the injury had almost healed, and
  • Where the victim engaged in unconscious acts that led to death.

The prosecution must prove causation, and a defendant is entitled to an acquittal if the prosecution fails to do so.

For example, a defendant was found not guilty in a case where the prosecution was unable to disprove that an underlying disease was the cause of the complainant’s death.

Voluntary act or omission

The defendant’s act or omission must be voluntary, and automatism (acting unconsciously) is a defence to murder.

So, for example, a person must be found not guilty if they commit the act while ‘sleepwalking’ in the absence of self awareness and self control.

Intention to kill or cause grievous bodily harm

An intention to kill or cause grievous bodily harm (GBH) means that at the time the defendant engaged in the subject act or omission, he or she meant to kill or cause GBH to the victim.

GBH means ‘very serious harm’, and includes but is not limited to:

  • Any permanent or serious disfigurement,
  • The destruction of a foetus, other than by a medical procedure, and
  • Any grievous bodily disease.

The required intent may be established where:

  • A continuous course of events led to the victim’s death, and the defendant meant to kill or cause GBH at any time during those events,
  • The defendant meant to kill or cause GBH but genuinely believed his or her actions would not lead to that outcome, or
  • The defendant meant to kill or cause GBH to a particular person but instead caused the death of a bystander.

Reckless indifference to human life

A defendant is recklessly indifferent if he or she did, or omitted to do, an act foreseeing that death would be the probable result.

Constructive murder

Constructive murder, sometimes called ‘felony murder’, is where another person’s death occurred during or immediately after the defendant or an accomplice committed, or attempted to commit, a criminal offence punishable by a maximum penalty of at least 25 years in prison.

Such offences include:

Penalty for murder

Section 19A of the Crimes Act 1900 prescribes a maximum penalty of life imprisonment for the offence of murder, and it is important to be aware that in New South Wales life imprisonment means ‘for the term of a person’s natural life’.

Standard non parole periods

Murder offences also carry what’s known as ‘standard non parole periods’ (SNPP), which are guideposts of reference points for a sentencing judge when determining the minimum term a person must spend behind bars before he or she is eligible to apply for release on parole.

The SNPPs for murder are:

Murder — of a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work 25 years
Murder — where the victim was a child under 18 years of age 25 years
Murder — in other cases 20 years

Defences to murder

Self defence is the most common defence to murder.

The defence is contained in section 418 of the Crimes Act 1900, which states that a person is not criminally responsible if he or she believes the actions were carried out in self-defence, and the conduct is a reasonable response to the perceived circumstances.

Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.

The defence is available where the conduct is necessary to:

(a) defend oneself or another person, or

(b) prevent or terminate the unlawful deprivation of ones liberty or the liberty of another person, or

(c) protect property from unlawful taking, destruction, damage or interference, or

(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

This extends to situations where a person steps in to defend another person.

However, section 420 of the Act makes clear that self-defence is not available where a person uses force that involves the intentional or reckless infliction of death only to protect property or prevent a trespass.

And section 421 provides that where a person uses excessive force to defend themselves or another, including to prevent the unlawful deprivation of liberty, and that force results in their target’s death, the person will be criminally responsible for manslaughter rather than murder provided that he or she believed the conduct was necessary in the circumstances.

Significantly, section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence. If the prosecution is unable to do this, the defendant must be acquitted.

As mentioned above, automatism is also a defence to murder.

Charged with murder?

If you or a loved-one has been accused of murder, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange for a conference or prison visit with a defence lawyer who is vastly experienced in advising and representing clients in serious criminal cases, including murder and manslaughter.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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