In Australia, Murder, like most criminal law, is defined by State legislation. In any jurisdiction within Australia, the maximum penalty for murder is life imprisonment; this is the mandatory penalty in Queensland, South Australia and the Northern Territory.
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South Australia
In South Australia, the Criminal Law Consolidation Act states:
"Any person who commits murder shall be guilty of an offence and shall be imprisoned for life."
No further definition for murder can be found within the Act. 'Life' is also poorly defined, with section 5 of the Act stating:
'"liable to be imprisoned for life" means "liable to be imprisoned for life or any lesser term."'
Instead, particulars of 'murder' and 'life' are defined by the common law.
New South Wales
In the New South Wales (NSW) Crimes Act 1900 as follows:
Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime...
Under NSW State law, the maximum penalty for murder is life imprisonment, with a standard non-parole period of 20 years, or 25 years for the murder of a child under the age of 18. Attempted murder carries a maximum penalty of life or 17 years imprisonment. In order to be found guilty of murder under the New South Wales Crimes Act 1900, intent to cause grievous bodily harm or reckless indifference to human life is sufficient to secure a conviction for murder. Reckless indifference to human life is characterised by the awareness of the probability (as opposed to possibility) of the accused's act resulting in a person's death (as opposed to merely resulting in grievous bodily harm). Felony murder (called constructive murder in Australian jurisdictions) and murder by omission are also recognised crimes in this jurisdiction.
Section 23 of Crimes Act 1900 provides for the partial defence of provocation, and can refer to actions taken by the deceased both immediately before, and prior to, the murder . If proven by the defence where there is a charge of murder, the jury will be directed to reduce the offence to manslaughter. If prior to or at the time of the committal proceedings an offender enters a plea of guilty to the lesser offence of manslaughter on the grounds of provocation, and it is accepted by the Crown, they are entitled to a discount on their corresponding sentence.
However, this is not the case in Victoria, Tasmania or Western Australia - the Crimes Act 1958 (VIC), in Section 3B, states:
The rule of law that provocation reduces the crime of murder to manslaughter is abolished.
In assessing guilt for murder, the intention in the precise method in which death occurred is irrelevant as long as the requisite mens rea and actus reus is satisfied. The relevant actus reus for murder is where an act (or omission) has caused death.
The mens rea for murder is:
- an intent to kill;
- an intent to inflict grievous bodily harm,; or
- reckless indifference to human life, where the defendant foresaw the probability, as opposed to possibility, of his or her actions resulting in death.
In NSW, a person can also be found guilty of murder if they kill a person during or immediately after the commission of a crime that is punishable by imprisonment of 25 years or more.