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According to Tasmanian statute, anybody who commits murder or manslaughter is guilty of a crime under the Criminal Code Act 1924 (Tas). As they are classified as serious offences in Tasmania, each charge has a separate penalty, with the highest penalty being life in prison.
Upon indictment of murder, the accused individual is charged under section 333 and can be convicted of several charges, including manslaughter.
For manslaughter, the individual is charged under section 334 and can be convicted of dangerous driving, ill-treating a child or an offence under subsection (1) of section 32 of the Traffic Act 1925 (Tas).
If an individual is convicted for the offence of Murder or Manslaughter in Tasmania, the offence will show up as a disclosable court outcome (DCO) on the results of their national criminal history check in Tasmania.
A murder or manslaughter offence is amongst the most serious indictable crimes and will remain on an individual’s criminal history check result for life.
Murder is one of Australia's most serious crimes, and not only in Tasmania. Murder is defined under Tasmanian law as the purposeful taking of another person's life, and it, along with treason, has a maximum punishment of life imprisonment.
As an indictable offence in Tasmania, the defendant has the right to a jury trial. The offence is split into major and minor indictable offences. Murder and threatening to murder are both felonies for which an offender may be detained without a warrant.
Under section 157 of Chapter XVII of the Criminal Code Act 1924 (Tas), Homicide: Suicide: Concealment of Birth, cases in which culpable homicide is murder if they meet the following requirements.
However, a homicide that does not amount to murder usually leads to manslaughter associated charges. Additionally, accessory after the fact to murder is a chargeable offence in Tasmania, Australia, under section 161 of the Criminal Code Act 1924 (Tas). The accused will be charged with being an accessory after the fact of murder. Here are some more additional charges associated with murder.
Under section 162 of the Criminal Code Act 1924 (Tas), any individual who is aware of contents thereof, willfully and with intent, thereby intimidating or influencing any person, causes such individuals to receive any writing threatening to kill them (or another person), is guilty of a crime. The accused will be charged with threatening to murder.
Under section 162A of the Criminal Code, failing to report a killing to proper authority (police officer, correctional officer, probation officer or a crown law officer) is a chargeable offence. A person is guilty of the crime if they discover that another individual has been killed and fails without a reasonable excuse to report the finding to the proper authority as soon as practicable.
Under the section, the charge spreads to include failing to report the impending killing of an individual (section 162A (3)) and also failing to report the planned killing of a person (section 162A (4)).
The sentencing for indictable offences in Tasmania is set out under section 7 of the Sentencing Act 1997 (Tas) which the court follows. For murder related charges, an offender can get a maximum sentence of living out their entire natural life in prison.
Murder offences involving youth are only determined depending on the court that will handle the matter. It could either be the Supreme Court or the Magistrates' Court, and it also depends if an adult was involved. For youth aged between 14 and 17, murder falls under prescribed offences which encompass different offences.
In 2003, Tasmania became the jurisdiction state in Australia to abolish the defence of provocation. The Model Criminal Code Officers Committee also recommended that the defence of excessive self-defence should not be reintroduced.
Regardless of the amendments, there are still some different defences available to an accused individual. If applicable, the defendant can rely on multiple defences, but they must be careful not to prejudice a defence by presenting weak and conflicting alternatives. Some common defences to murder in Tasmania includes the following:
Mens Rea is a Latin name for ‘Guilty Mind’. In a murder case, the prosecution has to prove that not only did the defendant commit the murder but that they also had a guilty mind. This means the defendant can base their defence on the fact that they didn’t know the wrongfulness of the act.
A common defence aspect is proving reasonable doubt. The defendant will not be found guilty of a murder charge if there is any reasonable doubt that the offender committed the offence. Some of the standard elements of a murder charge are:
Necessity is available as a defence method if the defendant had no other option but to break the law to avoid dire consequences. In Tasmania, it is not clearly defined whether the defence of necessity is available to the principal in the first degree of murder.
The defendant can also be found not guilty if they acted due to threats (either implied or express) of severe harm or death to the defendant or their dependents. For the defence of duress to stand, the defendant must prove that they received threats from an individual of ordinary fitness and strength.
A fatal assault in Tasmania that does not necessarily lead to a murder charge or under any other circumstances is manslaughter under section 159 of the Criminal Code. However, any opposing offence or for which there is a lawful excuse may not lead to a manslaughter charge.
Under Tasmanian law, an individual has to be highly negligent to be found guilty of manslaughter. If convicted for a manslaughter charge the offender could receive a maximum of 25 years in prison. Just like in murder-related charges, the offender can be arrested without the need for a warrant.
To plan the defence properly, the defendant needs to understand the difference between voluntary and involuntary manslaughter since each carries different sentencing. Voluntary manslaughter is when the defendant is accused of intentionally causing the death of another person, but that conduct has been mitigated because a partial defence is made out.
A defendant can be declared guilty of involuntary manslaughter where their actions directly lead to the death of a person, but they did not mean to cause death or serious bodily harm. The charge also states that the defendant was not reckless about whether their actions would lead to death or serious bodily harm.
Unlike murder charges, manslaughter does not attract the heavy penalty of living the rest of a defendant's natural life behind bars. However, 25 years behind bars is no small-time.
In Tasmania, the following are allowed as a defence against manslaughter charges:
While all the defences stated above can be used, there is a more common defence against such types of charges.
One of the common defences against a manslaughter charge is by proving the defendant was not capable of evaluating the nature and quality of their actions. The law specifies that the defendant must know that the actions they committed were wrong.
If it can be proved that the defendant has some mental impairments, disorders or disturbances characterised by mere lack of self-control or impulsiveness, the defendant may be found not guilty against charges related to manslaughter.
Like in murder-related charges, the defendant can defend against the charge by claiming they were acting under duress. It is especially applicable if the defendant acted due to the threat of severe bodily harm or death. The defendant should also prove that the threats were serious enough for an able-bodied individual to yield.
In circumstances where threats lead to the manslaughter charge, the defence of necessity may apply. Due to the circumstances, the defendant must prove that they are forced to carry out an act to prevent further damages.
If an individual is found guilty for a murder or manslaughter offence in Tasmania, the offence will show up as a disclosable court outcome (DCO) on the results of their national criminal history check.
Individuals can obtain a criminal history check online via the Australian National Character Check - ANCC® website.
Criminal Code Act 1924 (Tas) - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1924-069
Traffic Act 1925 (Tas) - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1925-038
Tasmania Sentencing Advisory Council (A Guide to Sentencing) - https://www.sentencingcouncil.tas.gov.au/__data/assets/pdf_file/0004/576139/A-Guide-to-Sentencing-in-Tasmania-July-2020.pdf
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