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  • Murder and Manslaughter Offences and Penalties in Victoria (VIC)

    Murder and manslaughter are two of the most severe offences in Victoria. These offences are strictly indictable and carry the maximum penalty in the state. Because of how serious these offences are, they are usually heard in the supreme court and can take months or even years to reach a final verdict.

    While murder and manslaughter have to do with causing another person's death, both offences are very different. These differences can determine the nature of the trial for each crime.

    In this write-up, we will be considering the legal aspects of murder and manslaughter and everything they entail. These include the definitions, elements, penalties, defences and other essential areas.

    The state of Victoria legislates murder and manslaughter offences in the Crimes Act 1958 (Vic).

    If an individual is convicted for the offence of Murder or Manslaughter in Victoria (Vic), the offence will show up as a disclosable court outcome (DCO) on the results of their national criminal history check in Victoria.

    A murder or manslaughter offence is amongst the most serious indictable crimes in Victoria and will remain on an individual’s criminal history check result for life.

    Murder in Victoria

    In Victoria, murder is a common-law offence that refers to when a person unlawfully kills another individual. Generally, common laws, also known as case law, are rules and regulations that the court develops. As such, it is usually a result of handling several previous similar cases.

    Nonetheless, these case laws are not rigid, with no possibility for change. Therefore, the court can subsequently build on them.

    Elements of a Murder Charge

    There are certain elements or factors that the prosecution must establish in a murder case. These elements are the basis upon which they can build a strong case of murder. Failure or inability to prove these elements could result in the acquittal of the accused.

    These elements include proving that:

    • The accused person had the intention of causing death or serious bodily injuries.
    • The accused willfully took certain actions to cause the victim’s death. They must have also carried out these actions knowing fully well that it could result in death or bodily injury.
    • The accused has no legal justification for their actions.

    A court could still find a person guilty of murder even when their action was not the sole cause of the victim’s death. However, the action of the accused must have significantly contributed to the victim’s death.

    Additionally, for the accused to be charged with murder, the Act must be voluntary. This means that the person had complete control of their actions and was not influenced by any substances like drugs or alcohol.

    Furthermore, a person can still be guilty of murder if they intentionally carried out an act likely to endanger the lives of others, even when their sole intention was not to cause any form of harm. This means that the accused was willing to risk the safety of others when they carried out the Act. Such cases are referred to as reckless murder.

    Penalties for Murder in Victoria

    The facts and circumstances surrounding each murder case differ. As such, the penalties for each are not exactly uniform. However, in Section 3 of the Crimes Act 1958 (Vic), the legislation gives a standard punishment for murder. It states that:

    • Anybody found guilty of murder is liable of facing level 1 imprisonment. This means life imprisonment or imprisonment for any number of years as the court sees fit.
    • Anybody convicted of murder faces a minimum of 25 years imprisonment. In a situation where the victim is a custodial officer or an emergency worker on duty, the accused may serve a minimum of 30 years imprisonment. For the 30 years imprisonment to stand, the accused must have known or should have known that the victim was a custodial officer or an emergency worker.

    Unintentionally Committing Murder in the Course Furthering a Violent Crime

    Section 3A of the Crimes Act 1958 (Vic) provides that any individual who causes the death of another person in the process of furthering a crime involving the use of violence may be guilty of murder and receive a sentence of life imprisonment or a minimum of 10 years imprisonment. However, this depends on the ruling of the court. This is because the court will consider the murder as an act that the defendant committed intentionally.

    Defences to a Murder Charge

    The accused can raise several defences to a murder charge depending on the case's circumstances and facts. Here are some of the possible defences to a charge of murder:


    #1. Self Defence

    It is the constitutional right of everyone to defend themself in the face of danger. According to Section 322k of the Crimes Act 1958 (Vic), a person may not be guilty of murder if they commit the crime of murder to protect themself from impending danger. In such cases, the defendant must be capable of proving that the force they applied for self-defence was proportionate to the threat perceived.

    If the accused can prove this line of defence beyond all reasonable doubt, it might lead to their acquittal. However, the success of the accused depends on the inability of the prosecution to disprove the defence.


    #2. Duress

    Section 322O of the Crimes Act 1958 (Vic) states that an individual may not be guilty of murder if a threat of harm was made towards them unless they commit the crime. However, certain circumstances make the defence of duress justifiable under the law. First, the accused must prove that they believed the threat of harm to be genuine.

    Secondly, they must show the court that they believed that the only way to stop the threat from being carried out was to commit the crime. Also, the accused must show that they believed that if the threat was carried out, it could lead to some severe bodily injuries or death.


    #3. Automatism

    Another defence that an accused person can raise against a murder charge is automatism. This defence is a product of common law. By using this defence, the defendant claims that they were not in control of their actions when they committed the crime of murder. Simply put, it is saying that the offence was unintentional and involuntary.

    The accused can either claim insane automatism or sane automatism.

    Proving insane automatism requires the defendant to convince the court that they had a mental illness, which caused them (i.e., the defendant) to lose control of their will and actions. This defence comes under the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic).

    On the other hand, by raising sane automatism, the accused asserts that they were under the influence of a substance, resulting in the loss of conscious volition. This defence is enshrined in Section 322T of the Crimes Act 1958 (Vic).


    #4. Sudden Emergency

    According to Section 322R of the Crimes Act 1958 (Vic), a person may not be guilty of murder if they committed the crime due to a sudden or extraordinary emergency. However, to claim this defence, the accused must have believed that there was truly an emergency and their conduct was the only means of dealing with the emergency.

    They must also prove to the court that they believed their conduct was an adequate response to the emergency perceived. Most importantly, they must show that they believed the crisis could have led to serious injury or death.

    Onus of Proof

    In the state of Victoria, the burden of proof typically falls on the prosecution. The prosecution has to prove beyond all reasonable doubts that the accused is guilty of the crime of murder. This may involve disproving any defence that the accused might raise in the course of the hearing.

    However, this burden of proof can also shift to the accused. This shift happens when the prosecution has succeeded in proving the crime beyond a reasonable doubt. When that happens, the accused will have the burden of proving their innocence.

    Manslaughter Charges in Victoria

    Manslaughter can generally be divided into two main types - voluntary and involuntary manslaughter. Voluntary manslaughter is a common-law offence that refers to a situation where a person intentionally carries out the Act of killing another individual under mitigating factors. For example, these mitigating factors could involve the absence of premeditation, provocation resulting in anger or rage, and the likes.

    The court can only convict a person of voluntary murder if the prosecution can prove certain elements beyond all reasonable doubt. These elements include establishing that:

    • The actions of the accused person led to the death of the victim
    • The accused consciously carried out the Act of murder
    • The accused’s actions are legally unjustifiable
    • The accused acted dangerously

    It is essential to note that even though voluntary manslaughter is similar to murder, there is a key difference between the two. While murder is premeditated, voluntary manslaughter is less premeditated.

    In the case of involuntary manslaughter, it is an unlawful killing devoid of intent. Consequently, this refers to when a person causes the death of others as a result of negligence or carelessness.

    An example of involuntary manslaughter is a driver whose reckless driving resulted in the death of a passenger. There are some elements that the prosecution needs to strongly prove in convincing the court that the accused committed the Act of involuntary manslaughter.

    These elements are:

    • The accused owed the victim a certain level of care.
    • Second, the accused breached their duty of care through negligence or recklessness.
    • Third, the accused voluntarily breached their duty.
    • Their actions led to the death of the victim.

    Involuntary manslaughter is different from voluntary manslaughter and murder in the sense that involuntary manslaughter completely lacks the intent to kill or cause any form of injury.

    Additionally, it is noteworthy that the duty of care depends on the nature of the event. As such, there are cases where the accused might not owe the victim a duty of care.

    Workplace Manslaughter in Victoria

    Workplace manslaughter is a type of involuntary manslaughter. It was introduced in July 2020 and is in Section 39G of the Occupational Health and Safety Act 2004 (Vic). The purpose of creating this law was to ensure compliance with workplace safety laws.

    The Act defines workplace manslaughter as a situation where a non-volunteer performs certain negligent conducts.

    These conducts are a breach of the duty the non-volunteer owed to others which led to the death of another person. In cases of workplace manslaughter, an employee, employer, and other duty holders in the organisation can be charged.

    Furthermore, there are distinct elements that a prosecution must prove in a hearing for workplace manslaughter. These elements are that:

    • The defendant was not a volunteer at the time the incident took place.
    • The accused acted out of negligence.
    • The actions of the accused person resulted in the breach of care owed to the victim.
    • Finally, the actions of the accused resulted in the death of the victim.

    The breach of conduct doesn’t necessarily refer to carrying out an action that endangers others but can also mean failing to take obligated steps to ensure the safety of others.

    According to Section 39G of the Occupational Health and Safety Act 2004 (Vic), the penalty of workplace manslaughter for an individual is 25 years imprisonment. For a corporate body, the penalty is 100,000 units which cost about $18,174,000.

    Manslaughter from a Single Punch or Strike

    Section 4A of the Crimes Act 1958 (Vic) states that manslaughter from a single punch or strike refers to the punch or strike that a person delivers to any part of another person's head or neck, causing the individual severe injuries and death.

    A single punch or strike, according to this legislation, could mean several punches. Also, the court can still consider it manslaughter of a single punch or strike even when the punch to the head or neck was not the cause of death.

    Furthermore, if a person punches another individual to their head and they fall, causing them to hit their head on the road, which leads to serious injury and death, the court may still consider the punch as the cause of death. Additionally, the crime of single punch manslaughter attracts a minimum of 10 years imprisonment.

    Penalties for Manslaughter in Victoria

    Under Section 5 of the Crimes Act 1958 (Vic), the crime of manslaughter attracts a level 2 imprisonment which is a maximum of twenty-five years.

    Defences to a Manslaughter Charge

    There are different defences to the charge of manslaughter. These defences can result in the acquittal of the accused or help mitigate the court sentence. The defences to the charge of manslaughter are:


    #1. Self-defence

    This defence is a complete defence. It means that if the accused can convince the court that their actions were to protect against harm or danger, they might be acquitted. First, however, the accused will have to show the court that the force they used in protecting themself against harm was not excessive.


    #2. Automatism

    This is another complete defence. Automatism has to do with convincing the court that the accused was not in their right state of mind during the time of the offence. This could be a result of a mental illness or involuntarily being under the influence of a substance.

    Burden of Proof

    In a case of manslaughter, the burden of proof falls to the prosecution. However, this might not be the case if the court decides to place it on the accused. Consequently, this means that the prosecution has the role of proving that the accused is guilty of the crime committed.

    Bottom Line

    Facing charges for either murder or manslaughter can negatively impact a person's life.

    If found guilty, it could result in an individual spending a long time in prison. For this reason, it is crucial for any person accused of any of these crimes to find an experienced lawyer for legal representation.

    Will a Murder or Manslaughter Offence in Victoria show up on a national criminal history check?

    If an individual is found guilty for a murder or manslaughter offence in Victoria, the offence will show up as a disclosable court outcome (DCO) on the results of their national criminal history check.

    A murder or manslaughter offence will remain on an individual’s police check for life and will not be eligible for the Spent Convictions Scheme.

    Individuals can obtain a criminal history check online via the Australian National Character Check - ANCC® website.

    Sources

    Crimes Act 1958 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/crimes-act-1958/294

    Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/crimes-mental-impairment-and-unfitness-be-tried-act-1997/077

    Occupational Health and Safety Act 2004 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/occupational-health-and-safety-act-2004/038

    Sentencing Advisory Council of Victoria (Maximum Penalties) - https://www.sentencingcouncil.vic.gov.au/about-sentencing/maximum-penalties

    Sentencing Advisory Council of Victoria (Homicide: Offenders, Victims and Sentencing) - https://www.sentencingcouncil.vic.gov.au/sites/default/files/2019-08/Homicide_in_Victoria_Offenders_Victims_and_Sentencing.pdf

    Work Safe Victoria (Victoria’s new manslaughter offences) - https://www.worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences

    Victoria Government Justice and Community Safety (Criminal Law) - https://www.justice.vic.gov.au/justice-system/laws-and-regulation/criminal-law

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