Murder and Manslaughter (Tas)

In Tasmania, there are a number of criminal offences involving homicide. These are contained in the Criminal Code Act 1924 and include murder, manslaughter, culpable homicide and infanticide. This article outlines the laws surrounding murder and manslaughter in Tasmania, what is required for these offences to be proven and the penalties that apply.

What is homicide?

Homicide is the killing of one human being by another. Under the Criminal Code Act, a homicide may be culpable or non-culpable. A homicide that is not culpable is not a criminal offence. Acts that fall into this category include homicides committed in self-defence and those resulting from accidents.

A homicide is culpable when it is caused by an act intended to cause death or bodily harm, or commonly known to be likely to do so and that is not justified under the Code. A homicide is also culpable when it is caused by an omission amounting to culpable negligence even where there is no intention to cause death or bodily harm, or where it is caused by an unlawful act.

What is the difference between murder and manslaughter?

The offence of murder is contained in section 158 of the Criminal Code Act. It carries a maximum penalty of imprisonment for the term of the offender’s natural life. For a court to find a person guilty of murder, it must be satisfied that they caused the victim’s death by an act intended to cause death or serious harm.

The offence of manslaughter is contained in section 159 of the Criminal Code Act. It is defined as a culpable homicide that does not amount to murder. A person who causes another person’s death by an act that was intended to cause harm, but not intended to cause serious harm, may be found guilty of manslaughter. Manslaughter carries a maximum penalty of imprisonment for 21 years.

Defences to murder and manslaughter

There are various legal defences that a person charged with murder or manslaughter may rely on. These include the following.

Self-defence

A person is not guilty of murder or manslaughter if they acted in self-defence. If a person charged with murder or manslaughter was defending themselves or another person against a threat of death or serious harm, and the only way they could avoid the harm was by doing the act that gave rise to the charge, they must be acquitted.

For this defence to succeed, there must have been no reasonable alternative to the use of lethal force. The force used must have been reasonably proportionate to the threat faced as the accused perceived it at the time of the alleged offence. However, the accused is not expected to ‘weigh their response on a knife’s edge’ to determine the exact level of force that is appropriate.

When the defence raises self-defence, it is up to the prosecution to negative (disprove) it. This means that in order to prove the accused guilty, the prosecution must prove that they were not acting in self-defence.

Lack of intent

In most cases, a person will not be found guilty of murder if they did not intend to cause death or serious harm to the victim. However, there are some exceptions to this. If a person does an act with the intention of causing serious harm to one person and in fact causes the death of someone else, the fact they did not intend to harm the victim will not absolve them of responsibility.

Duress

A person is not guilty of manslaughter if they were acting under duress. A person is acting under duress if they carry out an act only because of threats of death or really serious injury that are so serious that a person of ordinary courage would yield to them.

The defence of duress is not available in relation to a murder charge.

Automatism

A person is not guilty of manslaughter if they were acting in a state of automatism. Automatism exists when a person is carrying out bodily movements that are not consciously controlled. An example of an act done in a state of automatism is an assault carried out while a person is sleepwalking.

The defence of automatism is not available in relation to a murder charge.

Court process for murder and manslaughter matters

A person charged with murder or manslaughter in Tasmania has the right to a trial by jury. This will be held in the Tasmanian Supreme Court. If a person is charged with murder but the charge cannot be proven, they can be found guilty of the alternative charge of manslaughter.

When a charge of murder or manslaughter is laid, the accused will first have to appear in the Magistrates Court (or the Children’s Court if they are under 18). The matter will proceed through a committal process and if there is sufficient evidence to support a finding of guilt, the matter will be committed to the Supreme Court for finalisation via a trial or a plea hearing.

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