---

Murder and Manslaughter

---

Murder and Manslaughter

Chapter 28 of the Criminal Code (Qld) sets out the offences relating to Homicide.

Unlawful Homicide is set out under section 300, which makes any person who unlawfully kills another guilty of a crime, which is either murder or manslaughter, according to the circumstances of the case. Section 291 and 293 set out what constitutes an unlawful killing. Once it is established that the killing is unlawful it can then either be classified as murder (defined in s302 and punished in s305) or manslaughter (defined in s303 and punished in s310).

Unlawful Killing

Section 291 makes it unlawful to kill any person, unless the killing is authorised or justified by law. Section 293 defines killing as ‘causing the death of another, directly or indirectly, by any means whatever’.

There must be a causal connection between the act by the accused and the death. In R v Pagett (1983) 76 Cr App R 279 it was held that the accused person’s act need not be the sole cause of the victim’s death, so long as it contributed significantly. An example of this is in Royall v R (1991) 172 CLR 378. Here the crown argued that the deceased died in one of three ways; the third was by jumping from the window to escape a well founded apprehension that she would be subjected to further violence from the accused. The High Court held that an act of self preservation, which caused the death, does not break this causal connection.

In R v Blaue 60 Cr App R 271 it was held that the death of the victim was caused by loss of blood as a result of the stab wounds inflicted by the defendant. The victim, due to her religion had refused a blood transfusion. The defendant was found to have killed the victim.

Murder

Section 302 sets out the circumstances which a person who unlawfully kills will be guilty of murder.

1. If the offender intends to kill or cause grievous bodily harm to the person killed or some other person;
2. If the death is caused by means of an act done in the prosecution of an unlawful purpose and the act is of a nature likely to endanger human life;
3. If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such a crime. The crime must be such that the offender may be arrested without warrant;
4. If death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (3);
5. If death is caused by wilfully stopping the breath of any person for either of the listed purposes.

In R v Moloney (1985) 81 Cr App R 93 it was held that the mental element in murder consists of an intention to kill or cause serious injury and not merely of foresight that death or serious injury will be a probable consequence of their act.

A person who is found guilty of murder, under section 305, is liable to life imprisonment or an indefinite sentence (Part 10 Penalties and Sentences Act 1992). Further, if the defendant is being sentenced on more than one conviction of murder, or another offence of murder is being taken into account the person may not be released from imprisonment until a minimum of 20 years has been served.

Manslaughter

Section 303 provides that a person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter. A person who is guilty of Manslaughter under section 310 is liable to a maximum sentence of imprisonment for life.

Attempt to Murder

Section 306 makes it an offence to attempt to unlawfully kill another person. A person found guilty of attempted murder is liable to imprisonment for life.

Aiding Suicide

Section 311 makes it an offence to procure, counsel or aid another to kill himself/herself. A person found guilty of aiding suicide is liable to imprisonment for life.

Partial Defences

There are various partial defences available in the Criminal Code for Murder.

• Section 304- Killing on Provocation. If a person murders another and the act which causes the death is done in the heat of passion caused by sudden provocation, before there is time for the persons passion to cool, the person is guilty of manslaughter only.
• Section 204A- Diminished Responsibility. If a person murders another and the act which causes death is done when the accused is in such a state of abnormality of mind as to substantially impair their capacity to understand what they are doing, or to control their actions, or to know that they ought not to do the act, the person is guilty of manslaughter only.
• Section 304B- Killing in an abusive domestic relationship. If a person murders and the deceased has committed serious domestic violence on that person in the course of a relationship, and that person believes that their actions were necessary to preserve their life then that person will be guilty of manslaughter only.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au