What are the defences to murder?

There are few words that carry as much weight when spoken as “murder.” Murder is defined under section 302 of the Criminal Code 1899 (Qld) as the unlawful killing of another under certain circumstances. For example, section 302 circumscribes these situations to be the wilful, intentional killing of another person, or an intentional infliction of grievous bodily harm (serious physical injury inflicted on a person by the deliberate action of another) on the person killed. For completeness, there are several other circumstances under this section but the two previously mentioned circumstances are arguably the most common.

Generally, any person who is convicted of murder is liable to imprisonment for life. This penalty cannot be mitigated or varied.

It is important to note that murder differs from the offence of dangerous driving causing death, otherwise known as vehicular homicide. The latter offence comes with a maximum penalty of 14 years in prison.

What is murder?

The offence of murder requires the prosecution (the Crown) to prove the existence of physical elements and mental elements beyond reasonable doubt. The physical elements of murder require an unlawful killing where the accused has caused the death of the victim. To be liable for murder, as opposed to manslaughter, the Criminal Code requires an intention to cause death or grievous bodily harm. Once the prosecution’s onus has been discharged, the onus shifts on the defence to potentially make out one of the following defences on the balance of probabilities (more probable than not). The jury then decides on whether there are sufficient facts to acquit the defendant.

Defences for murder

Have an alibi
Having an alibi that proves the defendant was not at the scene of the crime when the crime was committed is a strong defence. This element hinges on the fact that the Crown would not be able to prove that an act or omission of the accused caused the death and criminal act.

The act was not voluntary
The Criminal Code presumes that the accused’s acts were voluntary. The Crown is therefore required to prove that the criminal act was done by the accused on their own free will, and that it was knowingly harmful. This defence is subject to the scenario in which the accused acted unlawfully due to the existence of a mental illness.

Acted under duress
The accused may be acquitted of the criminal act if he or she acted because of threats of death or serious injury to themselves or someone they were responsible to protect (i.e., their children). It also requires the defence prove that a normal person – or as the Crown calls it, “a person of ordinary firmness” – would have acted in a similar fashion under similar conditions (note: in New South Wales, the “murder under duress” defence does not apply when the accused did the killing, but is available when the accused is an accessory to murder).

Actions were an attempt to avoid more dire consequences
This defence can arguably be described as an act out of necessity. Specifically, it must be proved that the defendant acted in a way to avoid an otherwise unavoidable circumstance when the criminal act was undertaken. Additionally, the defendant may be acquitted if it can be proven that the accused acted to avoid imminent peril in a way that a reasonable person would act, with no other lawful alternatives available.

For example, this defence can be made out if the defendant acted to attempt to prevent death or serious injury to themselves or a dependent through the commission of a homicide.

Acted in self-defence
If it can be proved that the accused acted in a reasonable capacity that he or she deemed necessary to protect themselves or a dependant, their property or to prevent criminal trespass, then they may be acquitted.

Can prove mental illness
As a primary element to any criminal act, a defendant is presumed to be of sound mind and judgement, despite ignoring laws and moral guidelines that oppose . To prove the mental illness defence requires evidence that a defect of reason was caused by a “disease of the mind” in the accused. Mental illnesses that count toward this defence include schizophrenia and bipolar disorder.

A legal team you can trust

Criminal defence can be both confusing and overwhelming. To ensure you’re getting the right counsel for whatever matter you’re involved in or have been accused of, Russo Lawyers can help you navigate the intricate legal waters. For more information on what we can provide for our clients, contact us today and let us show you how we can help.

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