Murder and Manslaughter (NSW)
Murder and Manslaughter (NSW)
Both murder and manslaughter are homicide offences — offences involving one person being unlawfully killed by another. This page outlines the laws surrounding murder and manslaughter in New South Wales, including the defences and penalties that apply.
The legislation
The laws surrounding murder and manslaughter in New South Wales are set out in the Crimes Act 1900.
Murder
Section 18 of the Crimes Act defines murder as causing another person’s death
- with reckless indifference to human life or
- with the intent to kill or inflict grievous bodily harm or
- in an attempt to commit a crime punishable by imprisonment for 25 years or more.
This definition of murder encompasses the situation where a person kills another person intentionally or recklessly as well as the situation where a person kills another person in the process of committing a serious offence punishable by more than 25 years imprisonment, such as rape or robbery.
Manslaughter
Under the common law, a fatal unlawful assault committed in any other circumstances is manslaughter. Manslaughter occurs when a person is unlawfully killed as a result of an intentional act in circumstances that do not meet the threshold for murder.
Penalties
The maximum sentence for murder is imprisonment for the term of the offender’s natural life. However, a lesser penalty than imprisonment for life can be imposed for murder.
The maximum penalty for manslaughter is imprisonment for 25 years.
Standard non-parole periods
When a person is sentenced for murder, the standard non-parole period that applies 20 years. In some situations, when a person is sentenced for murder, there is mandatory minimum sentence and/or a longer standard non-parole period that applies.
Murder of a police officer
When a a person is found guilty of murdering a police officer in the course of their duty or as a consequence of or in retaliation for something they have done in the course of their duty, the court must give reasons if it departs from the standard non-parole period of 20 years.
Murder of a child
When a person is found guilty of murdering a child under 18, the standard non-parole period that applies is 25 years. If a court imposes a shorter non-parole period, it must give reasons.
Murder of an intimate partner
Under section 21A of the Crimes (Sentencing Procedure) Act 1999, when a person is found guilty of murdering an intimate partner, the standard non-parole period that applies is 25 years. If a court imposes a shorter non-parole period, it must give reasons.
Defences
The most common defences that apply to the offences of murder and manslaughter are outlined below.
Extreme provocation
In New South Wales extreme provocation is a partial defence to murder. If a person charged with murder is found to have killed the deceased in response to extreme provocation, they will be found guilty of manslaughter rather than murder if:
- the accused’s act was in response to conduct of the deceased;
- the conduct of the deceased was a serious indictable offence;
- the conduct of the deceased caused the accused to lose self-control;
- the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or cause grievous bodily harm.
It is important to note that conduct is not extreme provocation if it is limited to a non-violent sexual advance.
Self-defence
A person is not guilty of murder or manslaughter if they killed in self-defence. This is because the law recognises that a person has the right to act in self-defence when faced with a physical attack or threatened attack. Self-defence includes defence of another person.
When a defendant raises the defence of self-defence, it is up to the prosecution to prove beyond a reasonable doubt that the accused was not acting in self-defence. If the prosecution cannot prove this, the accused must be found not guilty.
For the defence of self-defence to succeed, the accused must have had a reasonable belief that it was necessary to do what he or she did in self-defence. Whether the accused’s actions were reasonable in self-defence will depend on the extent of the threat that was faced.
Duress
A defence to manslaughter is that the accused was acting under duress. A person acts under duress when their actions are performed because of threats of death or really serious injury that would cause a person of ordinary courage to yield.
If the defence raises the defence of duress, the prosecution bears the burden of proving that the accused was not acting under duress.
Other defences that may be advanced in relation to a manslaughter charge are: automatism and involuntary intoxication.
Other homicide offences
If a woman kills her baby (aged under twelve months) because the balance of her mind is disturbed as a result of giving birth to the child, she can be found guilty of infanticide. This offence can be charged as an alternative to manslaughter and carries the same penalty as manslaughter.
Section 25A of the Crimes Act makes it an offence, punishable by imprisonment for up to 20 years, to assault another person by hitting them, causing the death of the other person. This is known as ‘one punch manslaughter.’
Which court will hear the matter?
Charges of murder and manslaughter are indictable offences, which can only be heard by the District Court or Supreme Court.
If you need legal advice on a criminal law matter or any other legal matter please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.
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Michelle Makela has almost two decades of industry experience, coupled with a diverse academic background, and is committed to understanding the human side of law. Michelle holds a Juris Doctor, a Bachelor of Science (Psychology), and a Master of Criminology. She was admitted to legal practice in 2006. Over 19 years, Michelle has gained experience in commercial litigation, criminal law, family law, and estate planning. Her multidisciplinary background enables her to approach complex legal challenges strategically, compassionately and with an awareness of the big picture. Michelle leads the firm with integrity, sharp legal acumen, and dedication to delivering positive client experiences.
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