Murder or manslaughter offences are perhaps the most serious category of criminal offences in New South Wales and carry life imprisonment.

In matters of this nature, it is crucial that you get advice from an experienced criminal lawyer to help get you the best result possible. If you have been charged with murder or manslaughter the team at Australian Criminal Defence are here to help you and advise you on the next steps that you need to take.




There are four different types of murder, these are more commonly referred to as the four ‘heads’ of murder. If the prosecution can prove beyond reasonable doubt that a defendant either by an act or a failure to act caused the death of another person with any of the four ‘heads’ of murder, a person will be found guilty of this offence. The four ‘heads’ of murder are:

  • Intent to Kill
  • Intent to cause grievous bodily harm
  • Reckless indifference as to human life
  • In an attempt to commit a crime punishable by imprisonment for 25 years or more (Constructive Murder)

Perhaps the most complex ‘head’ of murder is that of Constructive Murder. If a person, by either an act or a failure to act is found to have caused the death of another person during or immediately after committing an offence punishable by 25 years imprisonment or more, this will satisfy the offence of murder. Examples of offences punishable by 25 years imprisonment where constructive murder may apply include:

  • Aggravated Sexual Assault in the company (life imprisonment)
  • Robbery in circumstances of aggravation with wounding (25-years imprisonment)
  • Kidnapping in company causing actual bodily harm (25-years imprisonment)


The Crimes act 1900 (NSW) rather unhelpfully states that (aside from those offences of murder) “every other punishable homicide shall be taken to be manslaughter”. The courts have over time developed the “two heads” of Manslaughter. They are:

  • Criminally negligent homicide
  • Unlawful and dangerous act manslaughter”

Manslaughter by criminal negligence requires the prosecution to prove beyond reasonable doubt that by an act or omission, the accused caused the death of another person without any intention of death or grievous bodily harm, but in circumstances that involved a great failure of the standard of care that a reasonable person would have exercised in the circumstances (The Queen v Lavender (2005) 222 CLR 67).

Unlawful and dangerous act Manslaughter requires the prosecution to prove beyond reasonable doubt that by a positive act, the accused caused the death of another person and a reasonable person in the position of the defendant have appreciated that the unlawful act exposed the victim to an appreciable risk of serious injury (Wilson v The Queen (1992) 174 CLR 313).


All these offences are extremely serious and almost always lead to a significant sentence of imprisonment if found guilty. The maximum penalty for each type of offence is shown below:


Maximum penalty


Life Imprisonment


25 years Imprisonment

The maximum penalties are reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and are not commonly utilised by the court. In New South Wales, the only circumstance in which the court has no discretion and must impose a life sentence for murder is where the murder involves the murder of a police officer in the execution of their duties (section 19B Crimes Act 1900 (NSW) (SEE: R v Jacobs (No 9) [2013] NSWSC 1470).

In all other circumstances, the court may exercise its discretion in sentencing an offender in accordance with the Crimes (Sentencing Procedure) Act 1998 (NSW).


So, the question still remains… what sentence would you get if you were charged with murder? It is a difficult question to answer and that is why it is best you speak with the team at Australian Criminal Defence to get a better understanding of your prospects. Sentencing statistics should only be used as a guide as they aren’t necessarily indicative of the result of any particular case.


Sentencing statistics for the offence of murder show that all offenders convicted of murder have received a term of imprisonment ranging between 8 years and life imprisonment with the majority of available statistics showing the mid-range of sentencing being 20-30 years imprisonment.


Sentencing statistics for the offence of manslaughter show that 70 out of 71 sentences resulted in a term of imprisonment with the other offender given a community corrections order. This meant that the offender was released subject to various conditions of good behaviour.


Complete defences

There are multiple “defences” that act as a complete defence to murder or manslaughter. They can be summarised as follows:

  • Automatism

Automatism is a complex and difficult question at law, it is often answered by way of complex expert reports which give insight into the acts of the accused at the time of the offending. A longstanding legal principle is that an accused person’s conduct must be voluntary, where the conduct in question (i.e. in this case murder/manslaughter) is not voluntary a person cannot be found criminally responsible for acts committed.

Some well-known examples would be acts committed while in epileptic shock, sleepwalking or some other uncontrolled act such as twitching or sneezing. This defence is utilised rarely, however in very specific circumstances it may apply.

  • Mental Impairment

The defence of mental impairment can apply in circumstances that an accused person is not criminally responsible for their actions where they:

  • Did not know the nature and quality of the act; or
  • Did not know the act was wrong

Much like the defence of Automatism, it is a question usually answered by way of complex expert reports. A presumption exists that the accused was of sound mind at the time of the offence, the onus is on the defendant to raise this defence. What is usually required is that the accused have a “disease of the mind” which was summarised in R v Porter (1936) to be a disease, disorder, and disturbance. A well-known example of a disease where this defence has previously applied is schizophrenia.

  • Necessity

The defence of necessity is available in circumstances where the accused is incited in some way (often by a threat or identification of potential harm) to break the law to avoid even more dire consequences. The defendant must show the following (R v Loughnan [1981] VR 443 at [448]:

  • The criminal act must have been done in order to avoid consequences of irreparable evil upon the accused or others whom they were bound to protect
  • The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and
  • The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided

The issue arises in the case of murder/manslaughter as to in what circumstances the “imminent peril” is not out of proportion to the death of another person, it is a difficult ultimately a question that will come down to the facts and circumstances of each case.

  • Self-defence

The accused must show two things, firstly that there is a reasonable possibility that the accused genuinely believed in the circumstances their conduct was necessary for any of the following reasons:

  • To defend themselves or another person
  • To prevent or terminate the unlawful deprivation of their liberty
  • To protect property from unlawful taking, destruction, damage or interference, or
  • To prevent criminal trespass to any land or premises or to remove a person committing any such trespass

Secondly, the accused’s response must be reasonable in the circumstances as they perceived them taking into consideration things such as the circumstances of the encounter, the age, gender, health etc. of the defendant/alleged victim. Once self-defence is raised, the prosecution must prove beyond reasonable doubt that the accused did not act in self-defence.

Partial Defences

A partial defence exists where a person is charged with murder, but as a result of a defence applying, they are found not guilty of murder and found guilty of manslaughter in the alternative. Multiple defences may apply in these circumstances:

  • Excessive self-defence

A person who acts in self-defence, but in a way where the defending of oneself is ‘excessive’ in the circumstance, it will be a partial defence. Excessive self-defence is available in circumstances where the accused uses force that results in the death of the victim and the accused believes it is necessary to either

  • Protect themselves or another; or
  • Prevent/terminate their unlawful deprivation or the unlawful deprivation of another, BUT

The conduct is not reasonable in the circumstance perceived by them.

  • Extreme Provocation

Extreme Provocation exists where the accused’s conduct is in response to conduct by the victim that it is so severely provocative that the accused is incited to respond in the manner that caused the death of the victim. It may only apply in circumstances where:

  • The act of the accused that causes death was done in response to the conduct of the deceased towards or affecting the accused; and
  • The conduct of the deceased was a serious indictable offence; and
  • The conduct of the deceased caused the accused to lose self-control; and
  • The conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

Murder, Manslaughter Case Studies

  • Our client was charged with murder. Our client denied the allegation. The matter proceeded to trial at the NSW Supreme Court. After a four week trial, the jury was hung and could not come return a unanimous verdict. Our client made a bail application to be released after 2 years in custody. The court granted bail.  The NSW DPP ran a second trial and on this occasion after a three week trial the jury came back with a NOT Guilty verdict.
  • Our client was charged with Murder. Our murder defence team believed that the circumstances of the matter did not warrant a murder charge but rather a  manslaughter charge. Our team briefed a number of medical experts who provided compelling evidence that supported our case . After months of negotiations , the NSW DPP agreed with our position and accepted a plea of guilty to a manslaughter charge and the murder charge was withdrawn.


Next Steps

If you have been charged with murder or manslaughter the team at Australian Criminal Defence are here to help you and advise you on the next steps that you need to take. Contact Joseph Harb our expert criminal defence lawyer now for a confidential consultation on 0415 932 866. He’s the best in Sydney and will be able to do what most other lawyers can’t.

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