A person can be convicted of the crime of murder in a number of different ways as per the offence provision (set out below) namely, s18 of the Crimes Act 1900 (NSW) – ‘the Act’. A person can be convicted of murder through a joint criminal enterprise or through a ‘common purpose’ – which is where the accused is guilty of the acts of an accomplice which fall within the scope of the original offence to be committed. These terms, “joint criminal enterprise” and “common purpose” whilst they use to be separate legal concepts are now used interchangeably to invoke the doctrine which provides the means of establishing complicity of a secondary party to the crime: McAuliffe v The Queen (1995) 183 CLR 108. Also contained within definition of the offence is the ‘felony murder rule’ – which is where a person is killed in course of a crime that carries imprisonment for life or 25 years.
A person can also be convicted of murder for either having the mens rea or intent to kill or a lesser intent such as reckless indifference to kill or cause grievous bodily harm (which is whether the accused knew his actions would probably cause death or grievous bodily harm: R v Crabbe [1985] HCA 22). For murder the test of recklessness is at the higher standard of proof namely, “foresight of the probability” whereas for any other criminal offence it is: “foresight of the possibility”.
There are partial defences available to reduce murder to manslaughter namely, provocation (s23 of the Act) and substantial impairment by abnormality of mind (s23A of the Act). Raising the defence of Provocation is only available for the offence of murder and as mentioned it is only a partial defence to reduce murder to manslaughter. Hence, provocation cannot be raised in relation to an offence of assault or an offence akin to assault.
The sentence of murder carries a maximum penalty of life – which is the term of the accused’s natural life: s19A of the Act. Whereas, for manslaughter the maximum penalty is 25 years imprisonment.
CRIMES ACT 1900 – SECT 18
18 Murder and manslaughter defined
(1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.
CRIMES ACT 1900 – SECT 19A
19A Punishment for murder
(1) A person who commits the crime of murder is liable to imprisonment for life.
(2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life.
(3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life).
(4) This section applies to murder committed before or after the commencement of this section.
(5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply.
(6) Nothing in this section affects the prerogative of mercy.
CRIMES ACT 1900 – SECT 23
23 Trial for murder-provocation
(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission,
(b) the act or omission causing death was not an act done or omitted suddenly, or
(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.
(5) This section does not exclude or limit any defence to a charge of murder.
CRIMES ACT 1900 – SECT 23A
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.
(8) In this section:
“underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind.
CRIMES ACT 1900 – SECT 24
24 Manslaughter-punishment
Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal.
