We’ve all heard the phrase ‘3rd degree murder’ used in countless American cop shows, but does this concept exist in Australian law?
The short answer is no – 3rd degree murder is not a legal concept in Australia.
Our system is different from America, where they have 1st degree, 2nd degree and 3rd murder charges, which can result in different sentences.
Here, our criminal lawyers explain how murder charges work in Australia.
What Are The Types of Homicide Charges in Australia?
While we do not have 3rd degree murder charges in Australia, we do have two different categories of homicide: murder and manslaughter.
Whether a homicide is classified as murder vs manslaughter has a huge impact on court proceedings, as well as potential sentencing.
What is Murder in Australia?
Under Australian law, murder is defined by section 302 of the Criminal Code 1899 as the willful killing of another person either intentionally or through reckless indifference.
For most murder charges, the intent to kill is an important element. Typically, to prove that a defendant is guilty of murder, the prosecution must prove that they intended to kill their victim.
However, there are certain cases where a murder charge can still be levelled without the element of intent, for example, if grievous bodily harm was done to a victim who subsequently died, or when the actions of the defendant were likely to endanger human life and resulted in death.
If you are convicted of murder, the sentence is life imprisonment, which cannot be mitigated. Under part 10 of the Penalties and Sentences Act 1992 (QLD), an ‘indefinite sentence’ can also be imposed.
What is Manslaughter in Australia?
In contrast with murder, manslaughter is the unlawful killing of a person without the intent to kill. Manslaughter often results from negligent or careless acts which have resulted in death.
There are two types of manslaughter in Australia:
- Voluntary manslaughter: Voluntary manslaughter can apply to cases involving provocation or self-defence, or when a person commits an unlawful and dangerous act which results in death and even if there was no intention to kill or cause grievous bodily harm.
- Involuntary manslaughter: Involuntary manslaughter applies to cases where the death was caused by criminal negligence. For example, if a doctor operating on a patient makes a mistake which leads to the patient’s death, they may be charged with involuntary manslaughter.
While manslaughter holds a maximum penalty of life imprisonment, the judge may consider mitigating factors regarding the offence which can result in a reduced sentence. The penalty of life imprisonment is not mandatory, which means that judges have discretion in deciding what sentence to impose based on the circumstances surrounding the manslaughter.
Have You Been Charged With Murder or Manslaughter?
If you have been charged with murder or manslaughter, is is important to seek legal advice immediately.
At Guest Lawyers, our team has extensive experience defending those charged with homicide-related offences, and will be able to assist you in creating an effective defence strategy.
We offer initial consultations (including in prisons) to assist with murder or manslaughter charges, and act for all persons required to appear before the Magistrates and Supreme Court. We also conduct appeals in the Court of Appeal and High Court.
We have a lawyer on call 24 hours per day, who is always ready to provide you with relevant and important advice. Please get in touch to speak to one of our team members and discuss how we can help.