Homicide In Melbourne
An alleged homicide in Melbourne may be charged as murder or manslaughter, which are among the most serious criminal offences in Victoria. Murder and manslaughter are strict indictable offences and can only be finalised in the Supreme Court after a committal proceeding in the Magistrates Court (or in the Children’s Court if the accused is under 18). There are several different offences of homicide in Melbourne and the rest of Victoria and these are outlined below.
Murder
Murder is an offence under section 3 of the Crimes Act 1958. A person found guilty of murder is liable to imprisonment for life or for such other term as the court determines.
A person is guilty of murder if they wilfully kill another person with the intention of killing them or doing them grievous bodily harm.
Voluntary Manslaughter
Voluntary manslaughter occurs when a person intentionally kills a person where mitigating factors are present. For example, where a fatal assault is occurs under circumstances of provocation, meaning that verdict of voluntary manslaughter, rather than murder, is appropriate.
Involuntary Manslaughter
Involuntary manslaughter occurs when a person unlawfully kills another person without intent to kill, such as in a car accident resulting from reckless driving or a death that results from an illegal and dangerous act. For a court to find a person guilty of this offence it must be satisfied beyond a reasonable doubt that the death resulted from an illegal act or omission or an act of neglect or a failure to take reasonable care.
Penalty for manslaughter
Under section 5 of the Crimes Act, the maximum penalty for manslaughter is imprisonment for 25 years.
If manslaughter is committed under circumstances of gross violence, the court must impose a sentence with a non-parole period of not less than ten years.
Single Punch Manslaughter
In 2014, Section 4A of the Crimes Act was introduced. Under that section, a person can be found guilty of manslaughter after delivering a single punch to another person’s head or neck if it causes their death. This is the case even where the victim dies from an impact other than the punch itself. For example, if person A punches person B causing them to fall over and hits their head on the road and die, person A is guilty of single punch manslaughter.
When a victim dies as a result of a single punch under circumstances where the victim was not expecting to be struck and the offender knew that they were not expecting to be hit (often called a ‘coward’s punch’), the accused must be sentenced to not less than a ten-year non-parole period. (Sentencing Act, section 9C).
Workplace Manslaughter
In July 2020, the Victorian government introduced a new offence of workplace manslaughter into the Occupational Health and Safety Act 2004. The offence aims to prevent workplace deaths and to deter people from non-compliance with workplace safety laws. It is contained in section 39G.
Workplace manslaughter occurs when a person who is a worker (not a volunteer) engages in negligent conduct that amounts to a breach of a duty owed to another person and causes their death. Partners, employers and other duty holders may be charged with this offence.
The maximum penalty for workplace manslaughter is 25 years imprisonment for an individual and a fine of 100,000 penalty units, for a body corporate.
Defences
There are a number of defences that may be advanced in response to a charge of homicide in Melbourne or elsewhere in Victoria.
Self-defence
Self-defence is a complete defence to homicide in Melbourne or Victoria and successfully arguing this defence leads to a full acquittal fo rmurder or manslaughter. It can also be a partial defence to murder, leading to a finding of guilt for manslaughter, where the accused is found to have used excessive self-defence.
In considering whether an accused genuinely believed that the act was necessary in self-defence or in defence of another, all the characteristics and circumstances of the accused at the time of the offence will be considered. The court must then determine whether the accused’s actions were reasonable in the circumstances as he or she perceived them at the time of the alleged offence.
Provocation
In Victoria, the defence of provocation was abolished in 2005. Although the defence of provocation can no longer be used in Victoria, the state now has the alternate verdict of voluntary manslaughter. This verdict can be delivered as an alternative verdict where an accused is charged with murder and killed in response to provocation.
Other defences that may be run where an accused is charged with manslaughter include duress and automatism.
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